NACDL E-News

January 31, 2014; Vol. 13 No. 01

Sex Offender Registration, Forfeiture, Deportation: The True Consequences of a Conviction

The issues affecting your clients do not end with sentencing—far from it. Indeed, as courts rely on defense counsel to inform their clients of the consequences associated with their conviction, you must have a solid understanding and all the available information to do this effectively. Without these tools, it can be devastating to your client and possibly your practice, whereas, lawyers who know about collateral consequences can often mitigate them or get better pleas.   

Join your NACDL colleagues in New Orleans the week of Mardi Gras for NACDL's 2014 Collateral Consequences Conference & Midwinter Meeting, presented in cooperation with the Defending Immigrants Partnership, to arm yourself with the tools to be a more effective advocate for your clients at the critical, but often neglected, post-conviction stage of their struggle.      

The event will be held at the InterContinental Hotel in New Orleans, LA, March 5-8, 2014.

Watch a short video about this important seminar here.

Learn more or register today here.

Applications Open for 2014 NACDL Election

In 2014, NACDL members will elect nine members of the Board of Directors, as well as President-Elect, First Vice President, Second Vice President, Treasurer, and Secretary. If you are interested in running for a Board or Officer position, please submit an application to NACDL’s Nominating Committee by April 14, 2014 at 5pm ET. All rules governing the conduct of NACDL elections as well as instructions for submitting applications to the Nominating Committee are available at www.nacdl.org/elections.

 

Special Issue of New York University Journal of Legislation and Public Policy Looks at Racial and Ethnic Disparities in the Criminal Justice System

Earlier this month, the NYU Journal of Legislation and Public Policy released a special issue, in collaboration with NACDL, featuring a series of articles examining the critical issue of racial and ethnic disparities in the criminal justice system. This issue culminates more than a year of focused NACDL action aimed at addressing racial and ethnic disparities. It follows on the December 2013 Conference, "Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System: Advancing the Reform Dialogue Through Action," which NACDL co-hosted with the Brennan Center for Justice, the Association of Prosecuting Attorneys, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.

All of the articles in the special issues, "Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System" are available free online. Articles in the issue include: In Search of Racial Justice: The Role of the Prosecutor (Angela J. Davis), Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City (David A. Harris), Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops (Renée McDonald Hutchins), 'Give Us Free': Addressing Racial Disparities in Bail Determinations (Cynthia E. Jones), Criminal Records, Race and Redemption (Michael Pinard), Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions (Jonathan A. Rapping), and 'Curing' Own Race Bias: What Cognitive Science and the Henderson Case Teach About Improving Juror’s Ability to Identify Race-Trained Eyewitness Error (Andrew E. Taslitz).

A complete overview of NACDL’s extensive work in this area is available at http://www.nacdl.org/racialjustice/.

 

NACDL Continues to Support the Right to Counsel at First Appearance

On January 17, NACDL and the California Attorneys for Criminal Justice filed as Amici Curiae in the case of Farrow v. Lipetzky, pending before the United States Court of Appeals for the Ninth Circuit. The case involves an appeal from a District Court ruling that indigent defendants are not entitled to appointed counsel at their first appearance before a California magistrate. In 2012, NACDL adopted a board resolution calling for "counsel at the first appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered."

NACDL’s amicus brief points out that the initial appearance before a magistrate is clearly a "critical stage of the proceedings." A defendant who appears before a magistrate in California can enter a plea, can request bail or release on his/her own recognizance, can request discovery and may have his/her speedy trial rights compromised without the assistance of counsel. The brief was authored by Gia Cincone of Kilpatirck Townsend & Stockton LLP in San Francisco, CA, and is available here. NACDL has supported similar efforts in the past to ensure that indigent defendants receive the guiding hand of counsel at their first appearance before a judicial officer who has the power to take away their liberty. NACDL’s brief in DeWolfe v. Richmond and Rothgery v. Gillespie County are available here and here, respectively.

 

Unanimous Supreme Court Applies Rule of Lenity; Reverses a 20-Year Mandatory Sentencing Enhancement for Sale of One Gram of Heroin

On January 27, a unanimous U.S. Supreme Court issued an important criminal law ruling in the case of Burrage v. United States by applying the rule of lenity – a rule of statutory construction that resolves ambiguities in the language of a law in favor of the defendant. Reversing the Eighth Circuit Court of Appeals, the Court held that to apply the 20-year minimum sentencing enhancement in §841(b)(1)(C) to someone convicted of selling certain substances to a user who then dies, "at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury[,]" the government must prove beyond a reasonable doubt that "but for" the use of that particular substance, the user of the drug would be alive.

In this case, Mr. Burrage had sold one gram of heroin to someone who, according to toxicology reports introduced at trial, had a cocktail of multiple drugs in his system. The government had secured the now-reversed sentencing enhancement in the lower court through argument and a jury instruction that it is enough under the statute – the plain language of which requires that the "death … result[ed] from the use of such substance" -- to prove that the substance sold by the defendant was a "contributing cause" of the user’s death. The Supreme Court unanimously disagreed.

A copy of the Court’s decision in Burrage v. United States is available here. The amicus brief NACDL filed in support of Mr. Burrage is available here.

 

Task Force on Restoration of Rights and Status after Conviction Seeks Stories

Over the past two and half years, NACDL's Task Force on Restoration of Rights and Status after Conviction has examined how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems. In May 2013, the Task Force completed a series of six hearings, held across the nation, where members heard testimony from key stakeholders concerned with collateral consequences and the relief mechanisms available to individuals with a conviction. The Task Force is now in the final stage of preparing a report that will identify the best practices that help facilitate the full restoration of rights and status of an individual following a conviction. The report will also provide policy recommendations that jurisdictions on the state and federal level can implement to help ensure that those with convictions can be put on a path to secure the full restoration of their rights and status. 

As a part of this report and its rollout, the Task Force would like to include stories from individuals who have lost their rights as a result of a plea or a guilty verdict. The Task Force encourages members whose clients, former clients, or other relevant contacts might be interested in participating in this important project to forward this link to enable such persons to complete a short online survey documenting how he/she has been affected by the collateral consequences of a conviction. To complete the survey and learn more, visit http://www.nacdl.org/restorationsurvey/.

 

Illegal NSA Program to End “as it currently exists”

On January 17, President Obama made an historic speech on the review of signals intelligence and the future of the bulk telephone metadata collection program. The President ordered "a transition that will end the Section 215 bulk metadata program as it currently exists, and establish[es] a mechanism that preserves the capabilities we need without the government holding this bulk metadata." He also provided for back-end protections for information currently in the government’s protection, like requiring the Foreign Intelligence Surveillance Court (FISC) to authorize searches of the database and limiting the number of searches from three "hops," or layers removed from a call number, to two "hops." In response to the speech, NACDL Executive Director Norman Reimer said, "While it is a step in the right direction to recommend ending direct government collection of this metadata and to provide back-end protections on searching the information, the President should have supported ending the program altogether."

Less than a week later, the Privacy and Civil Liberties Oversight Board (PCLOB), an independent and bipartisan agency within the executive branch, issued its long-awaited report on the telephone metadata program. In addition to making recommendations on transparency and reform of the FISC, three out of the five Board members found that: "The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program." The PCLOB Board will issue another report on the 702 PRISM program, which gathers the content of electronic communications, in the coming weeks. NACDL supports these findings and urges Members of Congress to pass the USA Freedom Act, which would end bulk collection of all records, not just phone records, under Section 215.   

To read the News Release NACDL issued following President Obama’s January 17 speech, click here. 

 

Apply Now for White Collar Criminal Defense College at Stetson in Gulfport, Fla. – March 19-22, 2014

The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. This program offers up to 22.5 General / 2.0 Ethics CLE credits. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.

For further information, contact Ellen Podgor. Please note that enrollment is limited and subject to application and approval. For complete information on how to apply, the agenda, faculty, accommodations, and more, please click here.  

 

NACDL to Offer FREE Online Training

As a result of a new partnership with MyCase.com, NACDL is offering six online trainings to members at no cost. These trainings are being held twice a month and will cover a variety of hot topics and feature prominent defenders. Upcoming webinars include:

Mental Illness & Intellectual Disabilities in the Criminal Justice System Featuring Elizabeth Kelley
Webcast: Thursday, February 13, 2014 at 11:00 am ET
CLE: Available for up to *0.5 hours of CLE, where self-study credit is authorized and approved.
Cost: NACDL Members: FREE (brought to you for no charge by MyCase.com). Non-Members: $15.
Learn more and register here.

SCOTUS Review & Update: Issues on the Horizon – Featuring Jeffrey L. Fisher, Neal Katyal, and Jeffrey Rosen
Webcast: Thursday, February 13, 2014 at 2:00 pm ET
CLE: Available for up to *1.5 hours of CLE where self-study credit is authorized and approved.
Cost: NACDL Members: FREE (brought to you for no charge by MyCase.com). Non-Members: $25.
Learn more and register here.

In Other News

Upcoming CLE Events
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Updates to Domestic Drone Information Center
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