The Foundation for Criminal Justice (FCJ) stands at a crossroads in the history of America’s criminal justice system. A not-for-profit charitable organization that pursues key criminal justice reforms, the FCJ seeks a fairer, more humane criminal justice system through a wide range of educational and reform projects. Today, it faces unprecedented opportunities to create a better criminal justice system. Likewise, it opposes unprecedented threats to everyday liberties posed by abuses of the criminal law.
Supported Projects and Highlights
Eliminating Racial Disparities in the Criminal Justice System
The Foundation for Criminal Justice sponsored Criminal justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System in partnership with NACDL and other partners. This groundbreaking project brought together leading experts from all corners of the criminal justice system over two conferences to identify effective and practical solutions to end racial and ethnic criminal justice disparities. Articles from the two conferences appeared in The New York University Journal of Legislation & Public Policy and in a series of articles published in The Champion, in addition to a three-part podcast series.
Learn more about the project.
Domestic Drone Information Center
NACDL’s Domestic Drone Information Center provides a one-stop source of cutting-edge information on the proliferation of drones inside the United States. It collects news from leading publications across the nation; features a comprehensive listing of legislative developments; and contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The Domestic Drone Information Center also aggregates existing material from other websites, making it a launching pad to additional information about domestic drones on the web. This project was made possible in part by support from the FCJ.
Visit the Center.
Excessive Sentencing: NACDL's Proportionality Litigation Project
With support from the FCJ, NACDL published a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences.
Read about the project.
Access to Competent Counsel
In partnership with NACDL and other allies, the FCJ supports indigent defense reform in several states and in the federal system. The FCJ's efforts to ensure the right to counsel include support for projects including impact litigation, academic conferences on the status of the right to cousnel, developing research, reports and resources for stakeholders and reformers, and other projects. The FCJ also supports NACDL's Indigent Defense Reform and Litigation Fund.
FCJ support enabled the release of several major reports on various issues that contribute to the indigent defense crisis in America. These reports and others can be found at www.nacdl.org/reports. Some specific examples include:
Training Lawyers and Educating the Public
The FCJ supports efforts to train criminal defense practitioners and to educate the public. Selected recent projects include:
- The first ever National Criminal Defense Forum on Forensic Mental Health & the Law in Denver, held in September 2013. The forum featured the most prominent forensic psychologists, psychiatrists, and lawyers from around the country. The program was a major success, and had approximately 350 attendees;
- Scholarships for over 50 immigration faculty, immigration experts, public defenders, trainers of trainers, and similar candidates to attend a March 2014 seminar on collateral consequences of conviction that included immigration-specific parallel programming;
- A three-part tutorial series that explores how journalists can effectively inform the public on the criminal justice system. Panelists included premier journalists covering criminal justice issues. The series focused on criminal justice policy, covering appellate cases, and covering trial cases. It is available online and has already been widely circulated among professional journalism circles (watch the series); and
- Efforts to improve the ability of the criminal defense bar to effectively utilize forensic science.
Restoration of Rights and Status After Conviction
The FCJ supports NACDL’s Task Force on the Restoration of Rights and Status After Conviction. The Task Force held hearings across the United States to look at the legal mechanisms used to restore rights and status, such as pardons, expungements, and certificates of good conduct. The Task Force is now finishing a report identifying best practices, and specific legislative and policy proposals to facilitate restoration of rights and status after completion of sentence.
Read more about this project on NACDL’s website.
Overcriminalization and Prosecutorial Misconduct
The FCJ opposes the overcriminalization of conduct and prosecutorial overreach. The nation's addiction to criminalization backlogs the judiciary, overflows prisons, and forces innocent individuals to plead guilty by making their constitutional right to a trial a prohibitively expensive and risky exercise. The FCJ, with NACDL, has marshaled allies from across the political spectrum to push back.
The FCJ actively supports efforts to require prosecutors to honor their obligation under Brady v. Maryland to share evidence in their files that is favorable to defendants. With support from the FCJ and others, NACDL is presently studying how the standards that prosecutors use to decide what evidence to give to defendants vary across circuits and individual courts. The forthcoming study will be published in a report that will give tremendous insight into how Brady is being used by prosecutors, and it will be an invaluable tool for those who seek to improve discovery in the criminal justice system.
With the support of the FCJ, NACDL undertook a study to understand the impact of grand jury reform on the criminal justice system. Evaluating Grand Jury Reform in Two States: The Case for Reform(PDF) summarizes in-depth research into the impact of grand jury reform in New York and Colorado. The report considers the experiences of prosecutors, defense lawyers and retired judges, and illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury.
The FCJ sponsored a June 2012 forum and panel discussion entitled Prosecutorial Misconduct, Legal Ethics and Fair Dealing: Does the Criminal Justice System Need Reform? The panel focused on the extraordinary misuse of government power to create an expansive, wasteful and inherently unjust system, as well as on specific high-profile instances of prosecutorial misconduct. It discussed the problem of overcriminalization, the abuse of the grant jury system, and the systemic problem of prosecutors suppressing evidence that is favorable to defendants.
Preserving the Fourth Amendment in the Digital Era
The FCJ is committed to preserving the Fourth Amendment and privacy rights from an onslaught of government overreach made possible by innovative surveillance technology. Its support has made possible myriad research, education, reform, and other projects in this area. Some recent and pending projects include:
- Research on law enforcement access to electronic third party records intended to guide defense litigation strategies and recommendations for reform;
- Research into the implications for privacy and liberty posed by the advent of familial DNA testing, including whether familial DNA testing comports with constitutional principles, and whether corrective action is necessary to challenge or limit this investigative technique;
- Litigation designed to protect professionals, students and tourists from the unconstitutionally suspicionless seizure of their laptop computers border crossings;
- Amicus efforts that condemn warrantless GPS-tracking of citizens’ everyday movements;
- Upcoming educational seminars and symposia to enhance the capacity of front line lawyers to effectively litigate cutting edge search and seizure issues in an age of rapidly advancing technology, as well as to advance academic research into the intersection of new technologies and the Fourth Amendment;
- The Domestic Drones Information Center;
- A panel discussion at the National Press Club on the use of canine searches, which raise serious long term implications for domestic privacy and the potential for law enforcement abuse of new technologies, especially those of dubious reliability.
Resources for Lawyers
The Resource Counsel Project at NACDL, made possible by initial support from the FCJ, provides access to technical assistance for, among others, court-appointed counsel, contract defenders, and solo and small firm defense attorneys. The goal of this project is to give all defense lawyers access to information and direct assistance on as range of critical topics from the basics of criminal procedure, to the cutting edge of substantive criminal law, like motions to challenge eyewitness identification procedures. The Resource Counsel has developed a broad, web-based technical assistance module for defense lawyers, as well as provided innumerable attorneys with direct technical assistance.
Having the resource counsel position has also permitted NACDL to obtain funding to train defense lawyers on a number of critical and topical issues. With support from the FCJ, NACDL coordinated a series of webinars to ensure that the criminal defense bar understands the implications of the Padilla v. Kentucky, Graham v. Florida, Miller v. Alabama, and Jackson v. Hobbs decisions. The trainings have been made available online without any charge, and remain available on demand, in an effort to reach the broadest possible audience. In addition, and with support from the Bureau of Justice Assistance, NACDL’s Resource Counsel has coordinated several national trainings that educate attorneys on litigating post-conviction innocence claims involving mainly flawed forensic evidence.
The FCJ is concerned about the impact of money in judicial elections on judicial attitudes toward criminal defendants. Too often, judges are attacked in elections as being “soft of crime.” The FCJ is concerned that these attacks compels judges to set extreme bail, and oversentence criminal defendants, among other things. NACDL wrote an amicus curiae brief on the link between judicial elections and overly harsh treatment of criminal defendants in the case of Caperton v. A.T. Massey Coal Co. That brief is available here.
To look more closely at this issue, the FCJ has provided funding to NACDL to work in the area of judicial independence. With this funding, NACDL recently co-sponsored and helped to organize a conference on judicial independence at DePaul College of Law. Speakers at the conference included Illinois Supreme Court Justice Thomas Kilbride and former Iowa Supreme Court Justice David Baker. More information on this event can be found here.
Padilla and the Future of the Defense Function
In Padilla v. Kentucky, the Supreme Court held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The decision is an important breakthrough because it formally recognizes that the sentence for a criminal offense necessarily extend beyond the conviction and the term of incarceration or parole to the critical civil consequences of the conviction. In holding defense lawyers accountable for explaining these civil consequences to their clients, Padilla represents a critical expansion of the role and duties of the defense lawyer not just with regard to immigration consequences, but more generally to the impact that the criminal case will have on the entirety of the client’s legal existence. The FCJ and NACDL have been at the forefront of efforts to fully understand the implications of Padilla and help the defense bar to implement its holding. FCJ Projects have included:
Convening on Padilla and the Defense Function
On June 20-21, 2011, the FCJ supported NACDL and the National Legal Aid and Defender Association (NLADA) as they co-hosted a convening of leading defense lawyers, law professors, and other stakeholders to discuss the impact of the Supreme Court’s decision in Padilla v. Kentucky, which recognized that the legal advice and assistance provided by defense counsel must go beyond the direct outcome of a criminal prosecution. To learn more about this event, click here.
Fordham Urban Law Journal on Padilla
In June, the FCJ and NACDL co-sponsored a convening that brought together criminal defense attorneys from across the country to discuss the Supreme Court’s recent decision in Padilla v. Kentucky and to examine the ways in which the decision will affect defense lawyers’ duties to advise their clients of the collateral consequences of criminal convictions. The discussions revolved around such pressing issues as consequences affecting immigration status and access to employment. The convening was documented in the Fordham Urban Law Journal, Volume 39, Issue 1. The volume includes the Report of the Conference, as well as the Keynote Address by New York Chief Judge Jonathan Lippman.
To view the Table of Contents, click here.
To obtain a copy of the Padilla issue, please email Daniel Weir at firstname.lastname@example.org.
Web-trainings on Complying with Padilla
Immediately after the Padilla decision, NACDL held a free online training to explain the decision to the defense bar and begin talking about how to comply. Since that time, NACDL has held a number of follow-up trainings online to help the defense bar effectuate the decision, including sessions on the immigration consequences of domestic violence cases, collateral consequences and drug offenses. These sessions remain available for viewing online, for free. To view the sessions, click here.
Representing Juvenile Defendants
The FCJ is also funding a number of NACDL projects designed to address sentencing reform after the Supreme Court’s decision in Graham v. Florida, which held that no juvenile defendant can be sentenced to life without parole for a non-homicide offense.
As part of this project, NACDL recently held a series of three online trainings aimed at individuals who represent juveniles in adult court. Sessions focused on adolescent development, fighting transfer to adult court, and age as mitigation. The trainings were aired live over the internet and remain available for viewing online, on demand for free through NACDL’s online CLE library, here.
The FCJ has enabled NACDL to take a leading role in ensuring that fundamental constitutional principles are not compromised in the name of national security. The John Adams Project, an effort undertaken in collaboration with the American Civil Liberties Union, seeks to ensure that even those accused of terrorism are given fundamental procedural protections designed to ensure that only the guilty are convicted, including, and perhaps most importantly, access to competent defense counsel who are given the resources and information necessary to prepare their case. The American defense bar recognizes that ill-equipped military attorneys, with minimal capital defense experience and inadequate support resources, cannot adequately vindicate the principles of justice which, until recently, provided a beacon of hope for the entire world. The John Adams Project is providing civilian attorneys, including death penalty counsel, as well as investigators and mitigation experts, to each of the five individuals charged capitally with causing the deaths that occurred on September 11, 2001.
The FCJ and NACDL continue to provide expertise, consultation, and support to the military and civilian lawyers representing detainees charged in the military commissions. Likewise, the organizations continue to identify and challenge the deficiencies in the military commissions system, independently advocating with respect to individual cases as well as broad policy initiatives and reform proposals. FCJ support has enabled several critical contributions in this area, such as the development of an ethics opinion supporting attorney-client privilege that was requested by military lawyers involved in military commission cases, amicus briefs challenging efforts by the government to restrict access of detainees to their lawyers, upcoming media trainings, and more.
With support from FCJ, NACDL instituted a minority fellowship program in criminal defense law. The purpose of the fellowship is to increase diversity in the criminal defense bar by giving underrepresented populations an opportunity to gain experience in a criminal defense law practice. Under this program, NACDL is able to hire minority law fellows who spend eight weeks working in a criminal defense law practice at the offices of exceptional, experienced NACDL members. Over the first three years of the program, NACDL placed between two and five fellows each summer. Fellows actively intern in the assigned criminal defense law office and are also invited to participate in NACDL events and networking opportunities throughout the summer.
Grand Jury Reform
With the support of the FCJ, NACDL undertook a study to understand the impact of grand jury reform on the criminal justice system. On November 10, 2011, NACDL released a groundbreaking report on restoring and reforming the grand jury system-- Evaluating Grand Jury Reform in Two States: The Case for Reform. This report summarizes in-depth research into the impact of grand jury reform in two states – New York and Colorado. In conducting this study, researchers Erin Crites, Jon Gould and Colleen Shepard of the Center for Justice, Law & Society at George Mason University studied the experiences of prosecutors, defense lawyers and retired judges. The report illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury. In addition, as the report’s findings uniformly demonstrate, NACDL’s proposed grand jury reforms have no harmful effects.
To find more information and a copy of this report, click here.