Margaret Lewis, “Criminalizing China”

“People and entities who have connections to the governing party-state structure of the PRC have engaged in trade secret theft and other activities that are criminal under U.S. law. The Department of Justice is not making up that there is a threat. It is, however, framing that threat in a way that is problematic.”


Margaret Lewis of Seton Hall University Law School has just posted a new paper on SSRN entitled “Criminalizing China” about the Department of Justice’s China Initiative. It will be coming out in the Journal of Criminal Law and Criminology. Here’s the abstract:

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By February 2020, the Federal Bureau of Investigation had approximately a thousand active investigations under the Initiative. The China Initiative is gaining momentum.

People and entities who have connections to the governing party-state structure of the PRC have engaged in trade secret theft and other activities that are criminal under U.S. law. The Department of Justice is not making up that there is a threat. It is, however, framing that threat in a way that is problematic.

This Article argues that using “China” as the glue connecting cases under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that have an even tangential nexus to “China.” It further contends that implying part of the justification for prosecution and resulting punishment is a shared connection to China is worrisome when assessed in light of the goals of deterrence, incapacitation, rehabilitation, and retribution. A better path is to discard the “China Initiative” framing, focus on cases’ individual characteristics, and enhance the Department of Justice’s interactions with non-governmental experts.

 

1 thought on “Margaret Lewis, “Criminalizing China””

  1. Well, you could change the name to the Asian RICO Initiative but I doubt that would change anything. With all the instances of prosecutions before the election in 2016 cited in the paper, and the caveats about PRC actions, it seems that without irony, the author doth protest too much. Chinese nationals are under greater scrutiny and that has deleterious impacts. That is unfortunate, but it seems to me the DOJ is threading the needle reasonably well. Seems to me the author is making an NRA-type argument, that we unfairly stigmatize guns – “Guns don’t kill people, people kill people” and we should focus on the bad people. Even so, responsible gun owners everywhere must suffer through the microaggressions of gun haters. I have Chinese friends who are high-level STEM researchers, and they are undeterred in their desire to build a life in the US. My family is Chinese, I taught Chinese government officials for seven years, and taught at a Chinese university for seven years. I understand the issues. At the same time, potential benefits to violators of US law can be substantial. Proposed remedies, like having more DOJ personnel learn Mandarin or involving more criminologists are pretty weak tea. Being “smart on crime” is a good idea, but enhanced communication is not likely to deter people looking at hundreds of thousands of dollars of benefits for copying some files onto a thumb drive. Caveat emptor is a good idea even when good faith is generally presumed. The microaggressions – and some macro – are unfortunately part of the turf on which we are all operating right now.

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