May 13, 2014 Criminal Law and the Administrative State written CLE materials | Administrative Conference of the United States

This collection of written materials is offered to satisfy Continuing Legal Education requirements in states such as New York or Virginia. With the exception of prior Administrative Conference recommendations, the views expressed in the written materials are those of the individual authors and do not necessarily reflect the views of the Administrative Conference.

On May 13, 2014, the Administrative Conference, together with the American Bar Association’s Criminal Justice and Administrative Law and Regulatory Practice Sections, the American Constitution Society, and The Federalist Society, is hosting a workshop, Criminal Law and the Administrative State: Defining and Enforcing Regulatory Crimes, to explore current topics at the intersection of criminal law and the administrative state. This blog post identifies relevant academic scholarship, including from our panelists and partners, offering diverse perspectives on the workshop subject matter. It also identifies relevant case law, congressional activity, and prior Administrative Conference recommendations.

Academic Scholarship

Panel One: Defining Regulatory Crimes

American Bar Association Criminal Justice Section, Task Force on the Federalization of Criminal Law (1998).
John Baker and William J. Haun, Criminal Law and Procedure: The “Mens Rea” Component Within the Issue of the Over-Federalization of Crime, 14:2 Engage 24 (July 2013).
Samuel Buell, The Upside of Overbreadth, 83 N.Y.U. L. Rev. 1491 (2008).
Ronald A. Cass, Ignorance of the Law: A Maxim Re-examined, 17 Wm. & Mary L. Rev. 671 (1976).
C. Jarrett Dieterle, The Lacey Act: A Case Study in the Mechanics of Overcriminalization, 102 Geo. L. J. 1279 (2014).
Susan R. Klein and Ingrid B. Grobey, Overfederalization of Criminal Law? It's a Myth, 28 Crim. Just. 23 (2013).
Susan R. Klein and Ingrid B. Grobey, Debunking Claims of Over-Federalization of Criminal Law, 62 Emory L. J. 1 (2012).
Arthur Leavens, Beyond Blame – Mens Rea and Regulatory Crime, 46 U. Louisville L. Rev. 1 (2007) [SSRN draft].
Daniel C. Richman, Overcriminalization for Lack of Better Options: A Celebration of Bill Stuntz, in The Political Heart of Criminal Procedure (2011). [Publisher website; SSRN draft]
George J. Terwilliger, III, Under-Breaded Shrimp and Other High Crimes: Addressing the Over-Criminalization of Commercial Regulation, 44 Am. Crim. L. Rev. 1417 (2007) [Available to subscribers or for purchase through legal research services].
Report of the Proceedings of the Judicial Conference of the United States, Long Range Plan for the Federal Courts, 38, 39-40. (Sept. 19, 1995) (emphasizing that criminal activity should be prosecuted in a federal court “only in those instances in which state court prosecution is not appropriate or where federal interests are paramount” and identifying five types of criminal offenses deemed appropriate for federal jurisdiction).
See also The Federalist Society, TheOverCrimDebate.com for a collection of related resources.

Panel Two: Agency Enforcement and Prosecution of Regulatory Crimes

Kate Andrias, The President’s Enforcement Power, 88 NYU L. Rev. 1031 (2013).
Rachel E. Barkow, Prosecutors in the Boardroom: Using Criminal Law To Regulate Corporate Conduct (2011) (ed. with Anthony Barkow). [Publisher website]
Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989 (2006).
James R. Copland, The U.K.’s New (and Improved Deferred-Prosecution Agreements, Nat’l L. J. (Mar. 03, 2014).
James R. Copland and Isaac Gorodetski, The Shadow Lengthens: The Continuing Threat of Regulation by Prosecution, Manhattan Institute Legal Policy Report No. 18 (Feb. 2014).
Daniel C. Richman, Corporate Headhunting, 2 Harv. L. & Poly Rev. __ (forthcoming 2014). [SSRN draft]
Daniel C. Richman, Political Control of Federal Prosecutions: Looking Back and Looking Forward, 58 Duke L. J. 2087 (2009).
Rena Steinzor, Cass Sunstein and the Obama Legacy, American Constitution Society for Law and Policy ACSblog (June 27, 2011).
David Uhlmann, Prosecutorial Discretion and Environmental Crime 38 Harv. Envtl. L. Rev. 159 (2014).
David Uhlmann, The Erosion of Corporate Criminal Liability, American Constitution Society for Law and Policy ACSblog (Dec. 10, 2013).

Case Law

Sackett v. Environmental Protection Agency, 566 U.S. __ (2012) (holding that the Administrative Procedure Act, 5 U.S.C. Sec. 704, provides for Judicial Review of EPA's Administrative Compliance Orders).
Touby v. United States, 500 U.S. 160 (1991) (holding that Section 201(h) of the Controlled Substances Act did not unconstitutionally delegate legislative power to the Attorney General and does not violate the separation of powers by concentrating too much power in the Attorney General).
United States v. Baldwin, 745 F. 3d 1027 (10th Cir. 2014) (affirming convictions for regulatory criminal offenses after discussion of congressional authorization).

Congressional Activity

Media Coverage

Ted Kaufman, Lopsided Approach to Wall Street Fraud Undermines the Law, The N.Y. Times (May 8, 2014).
Ben Protess and Jessica Silver-Greenberg, Two Giant Banks, Seen as Immune, Become Targets, The N.Y. Times (Apr. 29, 2014).
Judge Jed S. Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?, The N.Y. Rev. of Books (Jan. 9, 2014).
Federal Offenses Series: Examining the Bloated Criminal Code, Wall St. J. (May 6, 2013).

Prior Administrative Conference Recommendations

Recommendation 72-3, Procedures of the United States Board of Parole, recommending procedures, the right to counsel, and standards for parole decisions. This recommendation was largely implemented in agency regulations and by Congress in Pub. L. 94-233.
Recommendation 72-6, Civil Money Penalties as a Sanction, encouraging agencies to review their experiences with criminal sanctions “to determine whether authorizing civil money penalties as another or substitute sanction would be in the public interest.”
Recommendation 76-4, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, recommending that Congress amend environmental laws to permit the validity of a regulation to be challenged in defense to an enforcement proceeding.
Recommendation 82-7, Judicial Review of Rules in Enforcement Proceedings, discussing factors for Congress to consider in deciding whether to limit judicial review of rules at the enforcement stage.
Recommendation 86-2, Use of Federal Rules of Evidence in Federal Agency Adjudications, examining the varied rules agencies had adopted to govern admission of evidence in formal adjudications and recommending against mandating the use of the federal rules of evidence.
Recommendation 86-4, The Split-Enforcement Model for Agency Adjudication, examining the split-enforcement model of administrative adjudication.
Recommendation 94-2, Reforming the Government’s Procedure for Civil Forfeiture, addressing the increasing use of Government civil forfeiture to seize property or assets.
A number of recommendations encouraging the use of formal adjudication in civil money penalty proceedings or where hearings are likely to involve a substantial impact on personal liberties or freedom: Recommendation 93-1, Use of APA Formal Procedures in Civil Money Penalty Proceedings; Recommendation 92-7, The Federal Administrative Judiciary; Recommendation 72-6, Civil Money Penalties as a Sanction.