Legislative Priorities


	Print or Email This Page NACDL Federal Legislative Priorities - 2010 The National Association of Criminal Defense Lawyers (NACDL), a non-partisan organization without a political action committee (PAC), takes an active role in the national legislative process through an in-house, full-time Legislative Director, a Legislative Committee and Regional and State Coordinators. Our most important asset is our grassroots — the thousands of criminal defense attorneys who know first-hand the inadequacies of our current system and strive, from the halls of courts to the halls of legislatures, to achieve reforms. Supported by an involved membership, NACDL promotes rational and humane criminal justice policies for America — policies that ensure justice and due process for persons and entities accused of crimes, compassion for crime victims, and just punishment for the guilty. Such policies must respect the cherished civil rights and liberties so fundamental to our democracy. Citizens have a right to expect privacy in their homes, vehicles, and communications; a right not to be deprived of their liberty or property without due process of law; and a right to consult counsel of their choice without it being used against them. Within NACDL’s mission is an effort to focus more attention on the social and economic benefits of crime prevention — through education, economic opportunity, and rehabilitation of former offenders. Our governments must eschew simplistic, expensive, and ineffective measures such as inflexible mandatory sentencing, undue restrictions of meritorious appeals, punishment of children as adults, and incursions on our constitutional rights. NACDL’s Legislative Priorities for 2010 reflect these ideals. *Issues* Anti-Terrorism Measures Attorney-Client Relationship Crack Cocaine Sentencing Disparity Death Penalty & DNA Evidence Fair Criminal Procedures Federalization of Crime Forfeiture Reform Grand Jury Reform Habeas Corpus Restoration Immigrants & the Justice System Indigent Defense Internal Revenue Code Reform: Cash Transaction Reports Juvenile Justice Law Enforcement Abuses Mandatory Minimum Sentences & Judicial Discretion Money Laundering Reform Parent-Child Privilege Prosecutorial Ethics Racism in the Criminal Justice System Search & Seizure Self-Incrimination Victims’ Rights Amendment Anti-Terrorism Measures *NACDL urges Congress and the Administration to enhance homeland security in ways that do not erode the liberties and freedoms that are the core of the American way of life.* The terrorist attacks of September 11, 2001, and the “War on Terrorism” have resulted in a steady stream of proposals, by the Department of Justice and others, to increase the powers of law enforcement and the executive branch generally. Many of the requested powers are shortsighted, wasteful, and destructive to the core freedoms that are America’s strength. NACDL urges Congress to carefully scrutinize future anti-terrorism proposals and to conduct vigorous oversight of previously granted powers — especially the broad search and surveillance powers contained in the USA PATRIOT Act and related legislation. NACDL also supports legislation to repeal or restrict the most dangerous aspects of sweeping post-9/11 legislation. Tied to the expansion of federal police powers are Executive Branch efforts to minimize or evade judicial review, preclude the assistance of defense counsel, and avoid public oversight. In December 2005, it was revealed that the National Security Agency has been conducting warrantless surveillance of international and domestic electronic communications. As numerous constitutional scholars and former government officials have concluded, this program clearly violates intelligence and wiretapping laws as well as the Fourth Amendment. NACDL opposes legislation that would sanction the NSA program and recognize broad executive powers to spy on Americans without court approval. In the words of the conservative Fourth Circuit Court of Appeals, the Administration has taken the position that “with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so.” Abandoning the judicial system that served us well in bringing other terrorists to account, the Administration promulgated rules for military commissions that not only violate military justice law and the Geneva Convention (Hamdan v. Rumsfeld), but also threaten our country’s stature and the welfare of its military personnel throughout the world. Suspected terrorists captured in combat should be tried in military commissions that use the protections contained in the Uniform Code of Military Justice. Particularly troubling to NACDL and its members are measures that undermine the attorney-client relationship. On October 31, 2001, the Attorney General promulgated a rule that purports to give the federal government authority to monitor communications between people in federal custody and their lawyers without a court order. While the full scope of NSA’s surveillance program remains undisclosed, the agency apparently has intercepted privileged attorney-client communications. As Ben Franklin said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” America’s history includes too many episodes of its elected leaders and its people trading liberty for perceived safety; those episodes stained our national honor, wronged thousands of people and should serve as reminders to us now. Attorney-Client Relationship NACDL opposes the ongoing efforts to erode the attorney-client privilege and work product doctrine in criminal investigations and prosecutions in a manner that undermines the fair administration of justice. NACDL urges Congress to enact legislation establishing an express privilege protecting the act of contacting or retaining an attorney. A citizen’s act of consulting or retaining an attorney should not be construed as “evidence” of a defendant’s “consciousness of guilt” — as permitted by some courts. Nor should criminal defense attorneys be placed in the conflicted and often unethical position of having to provide information regarding their clients pursuant to attorney fee subpoenas, a prosecutorial tactic that violates the attorney-client privilege as well as the Sixth Amendment. This “right to counsel” privilege would constitute a simple black letter statement, in keeping with what the average American citizen already perceives is the law: “The act of contacting or retaining an attorney shall not be used as evidence against any individual or entity unless such act falls within an established crime-fraud exception.” Texas, among other states, has passed such a statute for the protection of its citizens. NACDL opposes any effort to change the role of the criminal defense lawyers from that of the client’s confidential advisor and advocate in dealings with the government into a conduit of information between the client and the government. Federal prosecutors and regulators increasingly rely on counsel for the defense to build the government’s case by insisting that the individual or corporate defendant waive the attorney-client privilege and turn over both client-lawyer communications and the work product of the lawyer. The policy of the Department of Justice, as expressed in its standards for the prosecution of corporations, is to encourage prosecutors to seek waivers of the attorney-client privilege and work-product doctrine as a condition for not being charged with a crime. The attorney-client privilege and the work-product doctrine — whether invoked by a corporation or an individual — are essential to the effective assistance of counsel and the due administration of justice; NACDL urges the Department of Justice to revise its guidelines and standards to reflect the central importance of these protections. Crack Cocaine Sentencing Disparity NACDL urges Congress to adopt the 1995 recommendations of the U.S. Sentencing Commission and reduce federal sentences for offenses involving crack (cocaine base) to the same levels as those involving other forms of cocaine. Federal law mandates a minimum sentence of five years for first-time possession of more than 5 grams of crack, but allows probation for possession of the same quantity of powder cocaine (from which crack is easily manufactured). It takes 100 times as much powder cocaine (500 grams) — combined with the intent to distribute the drug — to trigger the same 5-year mandatory minimum sentence. This 100:1 ratio likewise applies to the ten and twenty-year mandatory minimums and the sentencing guidelines. As affirmed in the Journal of the American Medical Association, there is no scientific basis for this excessive disparity. This is quite troubling in light of the Sentencing Commission’s finding that 85% of defendants receiving the harsher penalties for crack are black — even though the majority of crack users are white. Because even the appearance of discrimination erodes public confidence in our justice system, Congress should right this wrong. NACDL opposes legislation that would reduce the disparity solely by increasing powder cocaine penalties; given that more than 80% of defendants sentenced at the federal level for powder cocaine offenses are non-white, this approach would exacerbate the disproportionate impact of cocaine sentencing on minorities. Raising already harsh powder cocaine sentencing levels is no answer to the problem of disproportionate and discriminatory crack sentences. Death Penalty & DNA Evidence *NACDL opposes the death penalty in all circumstances and supports reforms to ensure that innocent persons are not executed.* Purely retributive in nature — countless studies show that it does not deter crime — the death penalty is unjust, uncivilized, and inconsistent with the fallibility of our justice system. Since reinstatement of the death penalty in 1973, more than 1040 people have been executed in the United States. During the same time, more than 120 people sentenced to death have been exonerated. Many others have had their sentences commuted to life imprisonment because of serious doubts about their guilt. And some have been tragically executed despite serious questions concerning their innocence. As former Supreme Court Justice Harry Blackmun wrote: “Despite decades of legal tinkering, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” Because we believe that no amount of tinkering will rescue the death penalty from its inherent flaws, NACDL supports legislation to abolish the death penalty. We also stand by the American Bar Association in calling for a death penalty moratorium across the United States. Declaring the death penalty a “haphazard maze of unfair practices,” the ABA has forcefully documented the injustices facing many of those sentenced to death. These include: absence of competent counsel, the pervasive influence of racial factors, and the evisceration by Congress of the critical fail-safe mechanism of federal post-conviction review (habeas corpus). A growing number of death penalty supporters now concede that the fallibility of our fact-finding mechanisms warrants a moratorium. NACDL supports individual state efforts to halt and study the death penalty as well as federal legislation to institute a moratorium. Fair Criminal Procedures To ensure due process and enhance public confidence in the justice system, Congress should pass legislation adopting the sound policies of various states regarding discovery, guilty plea colloquy, jury selection, and judicial disqualification. The federal criminal justice system would benefit immensely from the same procedures to ensure fairness that have long been in place in many state systems. Congress should approve a “Fair Criminal Procedures Act” to: 1) eliminate the government’s tactic of “trial by ambush” by providing the accused pretrial access to government witnesses and their statements, and permitting defense counsel to depose those witnesses; 2) require that defendants, prior to entering a plea of guilty, be fully informed about the factors to be considered in sentencing and the likely sentence they can expect to receive; 3) permit counsel on both sides to question potential jurors about their biases, background, and exposure to pretrial publicity; and 4) permit a defense attorney in a federal criminal trial to have a single peremptory challenge to excuse a judge who appears biased. Widespread misconduct by FBI Crime Lab agents and the prosecutors dependent upon such lab work, as documented by a 1997 report of the Department of Justice Office of the Inspector General, demonstrates the need for more open discovery procedures. Misconduct and mistakes should be uncovered at an early stage in the pre-trial process. This is only fair — not to mention economical, as it will deter the squandering of tax dollars on wrongful prosecutions. Such open discovery procedures are required by statute in many states and are required by local court rules in several federal district courts. Compared to the rules governing discovery in civil cases — which generally involve property rights as opposed to the liberty interests at stake in criminal cases — these proposed reforms are modest. Federalization of Crime *NACDL urges Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy.* In recent years, crime bills have granted federal prosecutors greater and greater authority by creating more federal crimes out of historically state and local crimes. For example, domestic violence, carjacking and failure to pay child support are traditionally the prerogative of state and local governments; federal jurisdiction is unwarranted, unwise and contrary to the Constitution. Regarding these and other federalized crimes, Supreme Court Chief Justice William Rehnquist observed that “one senses from the context in which they were enacted that the question of whether the states were doing an adequate job in this particular area was never seriously asked.” Before enacting federal criminal legislation, Congress should consider whether a federal interest is implicated and whether the state or local remedy is inadequate to address that interest. The impact on federal law enforcement and court resources should also be assessed. A blue ribbon task force sponsored by the American Bar Association concluded “that inappropriately federalized crime causes serious problems to the administration of justice in this country. It generally undermines the state-federal fabric and disrupts the important constitutional balance of federal and state systems.” American Bar Association Task Force on Federalization of Criminal Law (1998) (task force included former Attorney General Edwin Meese and several other present and former prosecutors and law enforcement officials). Likewise, in the collaborative article, Justice That Makes Sense (1998), the then-leaders of the nation’s three largest criminal justice groups — NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock — agreed: “Criminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response — calls to federalize more criminal activity and to lengthen already unwieldy prison terms. . . . There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice’s ability to fulfill its role of enforcing traditional federal offenses.” Forfeiture Reform Building on the watershed “Civil Asset Forfeiture Reform Act of 2000,” NACDL supports reforms in the areas of criminal forfeiture and federal sharing of forfeited assets with state law enforcement agencies. The “Civil Asset Forfeiture Reform Act of 2000” delivered several meaningful and overdue reforms — for example, it placed the burden of proof on the government, by a preponderance of the evidence, in all civil forfeiture cases covered by the Act. It also abolished the cost bond, the tariff claimants had to pay before they could proceed legally for return of their own property. The culmination of several years of tireless work by Rep. Henry Hyde (R-IL), NACDL, and others, the law has provided some measure of due process in civil forfeiture proceedings and, hopefully, has curbed certain abuses. NACDL hopes to complement this victory with meaningful reform to the abused criminal asset forfeiture laws. Several states have enacted similar or broader reforms, including provisions to require criminal conviction prior to any forfeiture. Unfortunately, federal law has frustrated some of these reforms. Under the federal equitable sharing law, if state police want to circumvent state forfeiture laws — for example, because the state law allocates forfeited assets to the state’s education fund — they simply turn the forfeiture over to federal law enforcement authorities. Federal authorities keep 20% and return roughly 80% to the state police. NACDL supports federal legislation to halt this circumvention of state law and fiscal policy. Grand Jury Reform *NACDL calls upon Congress to halt the dangerous erosion and abuse of the federal grand jury by enacting the modest proposals outlined in our* Federal Grand Jury Reform Report & “Bill of Rights.” Rather than a bulwark against “hasty, malicious and oppressive prosecution,” today’s federal grand jury is a rubber stamp, leading many to agree that “a good prosecutor could get a grand jury to indict a ham sandwich.” Rep. Henry Hyde (R-IL), former Chairman of the House Judiciary Committee, noted that the federal grand jury, originally established by the Founding Fathers as a means of protecting American citizens against government excess, is today a captive of federal prosecutors. To examine this once, great but now languishing institution, NACDL established “The Commission to Reform the Federal Grand Jury,” a bipartisan, blue-ribbon panel that included current and former prosecutors, as well as academics and defense attorneys. The unanimous conclusions and proposals of this diverse group are contained in the widely distributed publication the “Federal Grand Jury Reform Report & Bill of Rights.” Among the critical, workable reforms detailed in that report are: (1) the right to counsel for grand jury witnesses who are not receiving immunity; (2) an obligation to present evidence which may exonerate the target or subject of the offense; and (3) the right for targets or subjects to testify. In response to reported abuses, several states have successfully added these well-considered features to their grand jury systems. Habeas Corpus Restoration Congress should reinstate the guarantee of meaningful access to federal court review of state and federal convictions and sentences, which was gutted by “The Anti-Terrorism and Effective Death Penalty Act of 1996.” Along with a great many law professors and constitutional scholars across America, NACDL opposed the hastily-considered and unconscionable habeas corpus “reforms” ushered into law by “The Anti-Terrorism and Effective Death Penalty Act of 1996.” That law effected a sweeping and unprecedented curtailment of the right to obtain post-conviction habeas corpus relief in the federal courts: strict time limits have been set for filing the writ; state court factual findings are “presumed to be correct”; state court misinterpretations of the United States Constitution are not a basis for relief unless those misinterpretations are “unreasonable”; and all petitioners must show, prior to obtaining a hearing, facts sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the petitioner guilty. Congress should reinstate the guarantee of meaningful access to federal court review of state and federal convictions and sentences. Innocent Americans are wrongfully convicted for all types of crimes, in all courts. While only about 1% of habeas petitions to federal courts involve the death penalty, the consequences of a death sentence, in particular, warrant all reasonable safeguards that our legal system can provide. Studies indicate that federal judges are compelled to grant relief in as many as 40% of the death sentences presented before them on habeas review. Such review traditionally has been the last chance for innocent persons imprisoned or sentenced to die. Congress must ensure that the federal law provides an effective fail-safe mechanism against such injustice. At a minimum, Congress should follow the lead of states that have enacted targeted “new evidence” exceptions to their restrictions on post-conviction relief. NACDL urges Congress to reject proposals that, under the guise of “streamlining” the habeas process would, in fact, prevent federal courts from correcting wrongful convictions and preventing wrongful executions. Immigrants and the Justice System *NACDL supports legislation to restore reason to the catalog of offenses that trigger deportation and fairness to deportation proceedings.* In the aftermath of the 1993 bombing of the World Trade Center and the September 11 attacks, fear-driven legislation was passed that severely curtailed the rights of immigrants in many areas of society, including the courts. The Anti-Terrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 included provisions that authorize the deportation of immigrants — many of whom have resided in the US for virtually their entire lives — for minor crimes, including misdemeanors. The USA PATRIOT Act further expanded the grounds for deportation and also exposed immigrants to the threat of extended – and, in some cases, indefinite – detention. Tales of injustice are legion. In the months following the September 11 attacks, 1200 Muslim men were arrested and detained, as sweep that uprooted lives but yielded no terrorist suspects. Children adopted from other countries but raised in the United States are being deported to their country of birth if they are charged with an “aggravated felony” (an extraordinarily broad category of offenses) or certain misdemeanors. In many instances, these children, who merely lack naturalization, have no connection with the country of their birth. They do not speak the language, do not share the faith of the majority and do not understand the culture. The retroactive application of the 1996 legislation, combined with the expansion of deportable offenses and the denial of any relief for mitigating circumstances, has destroyed lives and ripped families apart. Indigent Defense *NACDL seeks to ensure adequate funding for state and federal public defender organizations and private appointed counsel.* Federal, state and local governments need to increase substantially the funding they devote to providing counsel to indigent defendants. Law enforcement and prosecution resources have increased markedly in recent years. At the same time, chronic under-funding of indigent defense services has caused overworked public defender offices to be swamped, forced appointed counsel to work at ridiculously low rates, and made a mockery of the Sixth Amendment’s guarantee of effective assistance of counsel. Such inequities guarantee that injustice will be done and innocent persons will be put to death or left behind bars. NACDL urges Congress to pass the “Prosecutors and Defenders Incentive Act,” which would provide Stafford and Perkins loan forgiveness for public defenders. With today’s young lawyers often carrying $100,000 or more in educational debt upon graduation from law school, many simply cannot afford to enter and continue employment as public defenders. The federal government should affirm its leadership role in this area by providing an adequate hourly rate for the 10,000 private attorneys who represent one-third of all federal criminal defendants. Fair funding of this function is essential to America’s time-honored adversarial system of justice, which is the most fundamental check and balance we have against the growing problem of law enforcement and prosecutorial misconduct. Legislation passed in 2001 increased the rates, but the new $90 rate lags behind the cost-of-living increases authorized by the Criminal Justice Act and the $125 hourly rate paid to other government contract attorneys. An increase in these hourly rates is necessary to provide a fair rate of pay and to enable courts to recruit and retain a sufficient number of qualified counsel to accept appointments. NACDL actively supports the Federal Judicial Conference’s request for a $113 hourly rate for non-capital cases. Internal Revenue Code Reform: Section 6050I & Form 8300 Congress needs to resolve the ethical dilemma for attorneys created by the Internal Revenue Code provision that requires disclosure of privileged and confidential information on cash transaction reports. Section 6050I of the Internal Revenue Code provides that any person who is engaged in a trade or business and who receives more than $10,000 in cash in one transaction (or two or more related transactions) must file a return (Form 8300) with the IRS. The return must disclose the name, address and taxpayer identification number of the person from whom the cash was received, the amount of cash received, the date and nature of the transaction and any other information required by the Secretary of Treasury. The attorney-client relationship, especially in the context of defending someone who is, or may be, accused of crime, is not like other business relationships. Without an exemption for privileged attorney services, section 6050I conflicts with the attorney-client privilege and state bar rules protecting client confidences. Requiring attorneys to provide information about clients turns them into government informants, impairing a sensitive relationship protected by the Sixth Amendment. Ethical lawyers have done their best to reconcile these conflicting demands by filing the forms without naming the cash-paying clients. But the IRS has assessed huge “intentional disregard” penalties against lawyers who withheld client names. Civil penalties under 26 U.S.C. � 6721(e) for intentional nondisclosure of information equal the greater of $25,000 or the amount of the cash received in the transaction, up to $100,000. Congress should exempt attorneys from section 6050I, or otherwise direct the IRS to implement a policy that respects the time-honored attorney-client relationship. Juvenile Justice *NACDL opposes efforts to radically expand federal prosecutions of children as adults at the expense of state and individual rights.* Some 69% of juvenile court judges from across the country were found to oppose mandatory waivers of juveniles into the adult system, even for serious, violent crimes. This is because studies show that young offenders who move through adult courts and correctional systems, especially those incarcerated with adults, become more alienated and destructive as a result of their experience. Knee-jerk measures to vastly expand the range of offenses for which youths are mandatorily placed in the adult criminal justice system are steps in precisely the wrong direction. We also oppose legislation that would allow prosecutors to determine whether a juvenile is charged as an adult, or would reduce the age at which a child can be charged as an adult. More thoughtful and more effective approaches are needed. Congress should retain the current federal approach to juvenile crime — nurturing the states’ more expert efforts to prevent juvenile crime and rehabilitate youthful offenders, and limiting federal adult prosecutions to those cases deemed extraordinary by a neutral judge applying specific factors enumerated by Congress. Abandoning this approach would, in the words of Supreme Court Chief Justice William Rehnquist, “eliminate the traditional preference for state prosecutions of juvenile defendants, particularly if the juvenile is to be prosecuted as an adult.” Law Enforcement Abuses Congress must insist upon meaningful checks and balances and oversight of law enforcement powers; and it must more carefully scrutinize requests from an entrenched law enforcement lobby for even more powers and resources. Across the nation, cases of police misconduct and brutality and systemic corruption within law enforcement agencies surface with alarming regularity. Entire police departments, such as those in Philadelphia, Chicago, and Los Angeles, have been embroiled in scandal, and many communities are plagued by widespread police brutality. The problem is not confined to state law enforcement. NACDL was one of a handful of organizations that immediately called on President Clinton and Congress to investigate Waco, Ruby Ridge, and other tragedies in which agents acting with the authority of the federal government trampled on the rights of Americans. NACDL was also at the forefront of the fight to ensure that the American people received full disclosure about the FBI Lab’s systematic misconduct, and that the persons whose cases were compromised by such misconduct were identified and afforded an opportunity for relief from wrongful conviction. We were successful in our Freedom of Information Act claims to compel the Department of Justice and the FBI to disclose the full truth about the mistakes and misconduct by special agents in the FBI forensic laboratory and in the field. We also participated in congressional oversight hearings and called upon Congress to take specific action to restore integrity to the forensic science relied upon by the justice system. Another issue on which NACDL has been vocal is government misuse of informants. The federal government often pays informants hundreds of thousands of dollars, or grants of freedom, if they will testify against a fellow citizen. This is a powerful incentive for false or misleading testimony — testimony that often constitutes the entire case against the accused. Accordingly, we urge Congress to enact safeguards against dishonest informant testimony. Congress should prohibit the government (as it does defense lawyers and others) from paying money or promising anything of value in exchange for testimony. And Congress should require in all federal criminal investigations and prosecutions that “accomplice testimony must be corroborated by non-accomplice testimony and/or evidence — both in the grand jury and at trial — before it can be deemed legally sufficient to establish either probable cause or guilt beyond a reasonable doubt.” This is the law in several states, including New York, and it has not impeded those states from successfully prosecuting worthy cases. Mandatory Minimum Sentences & Judicial Discretion *Mandatory minimum sentences should be repealed and the Sentencing Guidelines should be amended to afford judges greater sentencing discretion.* Mandatory minimum sentencing deprives judges of the ability to fashion sentences that suit the particular offense and offender. At great cost to taxpayers, mandatory minimums have forced judges to sentence thousands of first-time, non-violent drug offenders to unconscionably long prison terms. The Judicial Conferences of all 12 federal circuits have urged the repeal of mandatory minimum sentences, after concluding that they are unfair and ineffective. Commenting on a minor, first-time drug offender sentenced to life imprisonment, Supreme Court Chief Justice William Rehnquist has called mandatory drug sentencing “a good example of the law of unintended consequences.” Unwarranted sentencing disparity is one consequence of this scheme that shifts sentencing discretion from judges to prosecutors. Such drug sentencing laws disproportionately affect minorities and have contributed greatly to the more than threefold increase in the U.S. prison population during the past decade. Numerous studies, including those by the Department of Justice and the U.S. Sentencing Commission, indicate that mandatory minimum sentencing is not an effective instrument for deterring crime, and a RAND Corporation study found that drug treatment is seven times more cost-effective than mandatory minimum sentencing. In response to Justice Kennedy’s remarks at the ABA’s annual meeting in August 2003, the ABA formed the Justice Kennedy Commission, comprised of prominent attorneys from various sections of the ABA. The Justice Kennedy Commission’s recommendations, which were endorsed by the NACDL and approved by the ABA, include: (1) repeal of mandatory minimum sentences; (2) sentencing alternatives to incarceration as punishment for those who pose a low risk to society and appear likely to benefit from rehabilitative efforts; (3) appropriate programming, including substance-abuse treatment, educational and job-training opportunities, and mental-health counseling and services, from the beginning of each prisoner’s incarceration. In the wake of United States v. Booker, 125 S. Ct. 738 (2005), some legislators and Department of Justice officials have expressed support for shortsighted proposals that would eviscerate judicial discretion and exacerbate unfairness in federal sentencing. In Booker, the Supreme Court struck down the statute that made the Federal Sentencing Guidelines mandatory. NACDL urges Congress to permit federal courts to use the advisory system of guidelines left in place by Booker and reject “quick fixes” like broader application of statutory mandatory minimum sentences and “topless guidelines” (AKA the “Bowman fix”), which would equate the maximum of the guidelines sentencing ranges with the statutory maximum for the offense of conviction. Assuming lawmakers retain some form of the current guidelines system, “The Federal Sentencing Guidelines should be revised downward,” as Justice Anthony Kennedy told the annual meeting of the American Bar Association. To a great extent, the Sentencing Guidelines reflect congressional action rather than the independent judgment of the U.S. Sentencing Commission, and recent efforts by certain lawmakers and the Department of Justice to restrict downward departures have further undermined the structure and fairness of the Sentencing Guidelines. Money Laundering Reform NACDL calls upon Congress to narrow the money laundering laws to comport with their original purpose and curb prosecutorial practices that unjustly punish businesses and persons and burden the Sixth Amendment right to counsel. Federal money laundering laws cover too much peripheral conduct that the statutes and their draconian guidelines were not meant to address. Once a tool for drug or racketeering cases, these laws are now applied to a wide range of activities, including routine business transactions. As interpreted and applied, the current law is a cruel trap for unwary individuals and businesses that inflicts felony convictions, harsh and inflexible prison sentences, and ruinous asset forfeiture. The Department of Justice has failed to reign in this darling of the prosecutor’s nursery, allowing prosecutors to use the laws to coerce unfair plea agreements. NACDL has proposed several technical statutory amendments to rectify the money laundering regime’s most serious flaws: (1) the prosecutorial practice of piling on money laundering charges that are incidental to or virtually indistinguishable from the underlying offense; (2) the use of the statute against legitimate businesses or business persons who are not guilty of the underlying crime and who have not attempted to conceal the source of the funds; and (3) the Department’s apparent willingness to use the statute against honest criminal defense lawyers who receive bona fide legal fees for arms-length, legitimate and ethical representation. Over fifteen years of experience with the Money Laundering Control Act has led to the inescapable conclusion that the Department of Justice and the courts are incapable of controlling this blunderbuss. NACDL’s proposals in this area are not only necessary to bring rationality and fairness to the laws but are consistent with the aims of legitimate law enforcement. The proposed amendments would simplify and clarify current law, facilitate compliance efforts by individuals and businesses, and focus federal law enforcement on serious misconduct. Parent-Child Privilege *Parent-child communications should be legally protected in the same manner as are communications between a person and her religious advisor, psychiatrist, attorney or spouse.* The need for legislation recognizing a parent-child privilege was never clearer than when the American public witnessed a visibly shaken Marcia Lewis leaving the grand jury room after interrogation about intimate conversations with her daughter, Monica Lewinsky. This private relationship represents one of the most basic and fundamental values of American society — the need for trust and open communication between parent and child. Historically, many courts have felt that the issue of parent-child privilege is one to be decided through legislation, and not through judicial precedent. It is time for Congress to ensure that this relationship is protected in the manner it deserves — and as most Americans rightly expect it to be. NACDL’s proposal does not call for drastic reworking of existing law. Rather, it simply clarifies the existence of a privilege for parents and children akin to that which is well recognized for communications with a similarly close family member — a spouse. The proposed statute would protect only confidential communications between a child and a parent or guardian. The privilege would protect the parent from being compelled to disclose in any official proceeding what the child told the parent, unless the child expressly permits the parent to testify. Likewise, it would protect the child from testifying against the parent. The statute takes into account the needs of law enforcement, and would not protect any communication made in the presence of others or in furtherance of a crime, or in any instance where the child is a victim of violence or abuse. Prosecutorial Ethics *NACDL opposes any effort to exempt federal prosecutors from the basic rules of ethical conduct applicable to all attorneys, including state prosecutors.* No one — not even federal prosecutors — should ever be above the law. Critical to this principle is the “Citizens Protection Act,” enacted in 1998. Also known as the McDade-Murtha Law, it reestablishes the principle that federal prosecutors are in fact subject to the same neutral state supreme court and federal court rules of ethical conduct as are all other attorneys. NACDL has long opposed the unilateral efforts of the Department of Justice to confer upon its own attorneys the power to evade one of the most basic tenets of lawyer ethics: the no-contact rule. In a 1989 memorandum, then-Attorney General Richard Thornburgh claimed that the Constitution’s Supremacy Clause permits the Justice Department sole discretion to decide which state bar licensing rules its prosecutors will obey — regardless of whether these rules also are adopted by the federal courts. Specifically, the Department began asserting that its lawyers alone can violate the fundamental state and federal court ethical rule against interrogating individual citizens or employees of small businesses and corporations outside the presence of counsel. In 1994, Attorney General Janet Reno codified this ethical exclusion into a federal regulation. Even before the McDade-Murtha Law, the Justice Department’s specious claim to such absolute, unchecked power had been soundly rejected by the federal courts that considered it and by the Federal Judicial Conference and the Conference of State Court Chief Justices. The American Corporate Counsel Association and the American Bar Association also are on record against the Department’s arbitrary assertion of absolute authority. In spite of this clarion call, the Justice Department and others continue to press ill-considered efforts to weaken the McDade-Murtha Law. Racism in the Criminal Justice System All levels and branches of government must strive to eliminate racism in the criminal justice system through improved law enforcement training and discipline, condemnation of racial and ethnic profiling, and reform or abolition of laws that have a disproportionate impact on minorities. While the most visible effect of racism in the criminal justice system is the gross imbalance between whites and minorities in U.S. prisons — with one in three young African-American males under criminal justice system control — racial bias has a shameful impact at all stages of the criminal justice process. NACDL targets three specific areas in which racial bias infects the treatment of suspects, defendants, and prisoners: (1) the unconstitutional and irrational use of racial and ethnic profiling in determining whom to stop and search; (2) the radically disparate impact of mandatory minimum sentencing schemes on minorities; and (3) bias in applying or determining the appropriateness of the death penalty at both state and federal levels, by prosecutors, judges and juries. Search & Seizure NACDL opposes encroachments on the Fourth Amendment’s protection against unreasonable search and seizures through measures that would abolish or limit the exclusionary rule or selectively eliminate the requirement for a warrant based on probable cause. One of the most important factors in the Founding Fathers’ decision to declare independence from England was outrage at the unchecked power of the King’s soldiers, acting as police, to search the colonists’ persons, homes and storehouses whenever they chose and without permission from anyone. With passage of the Bill of Rights in 1791, we inherited the Fourth Amendment right to be free from unreasonable, warrantless searches and seizures. Recognizing that a right without a safeguard is no right at all, the Supreme Court, in the 1914 decision Weeks v. United States, fashioned the exclusionary rule as the only effective means of enforcing the protection guaranteed by the Fourth Amendment. When illegally obtained evidence is excluded from legal proceedings, the police are less likely to execute illegal searches, and the courts are spared the ignominy of becoming accomplices to the civil rights violations of rogue police officers. Proposals that would abolish the exclusionary rule, or permit a broad “good faith” exception for warrantless searches and seizures, would eliminate law enforcement’s only incentive to apply for a warrant before a neutral and detached judicial officer. This would have the effect of granting the police absolute power to search our homes, offices and vehicles, and to seize our persons and property. Especially in an era of increasingly sophisticated and intrusive technology, we must be careful to protect our fundamental rights to privacy and property from being trampled by panicky legislation and political expediency. It is important that familiar catch phrases such as the “war on drugs” and the “war on terrorism” are not used to justify excessive powers to monitor electronic communications. Self-Incrimination NACDL opposes any legislation that would shift, from the government to the accused, the burden of proving the voluntariness of an alleged confession; we also urge Congress to enact legislation requiring the videotaping of interrogations. Coercion and psychological manipulation have resulted in false confessions from accused persons across the country. Past efforts to legislate in this area would effectively eliminate the current rule against prolonged interrogations of suspects, even though studies have shown that these sessions frequently result in false admissions of guilt. Such measures would erode the presumption of innocence and would propel our nation toward an inquisitional, rather than adversarial, criminal justice system. Congress should work to enhance the reliability of confessions. NACDL supports legislation to require videotaping of interrogations, a simple procedure that would deter human rights violations, reduce the risk of wrongful convictions due to false confessions, and greatly enhance the truth-seeking process by resolving factual disputes concerning interrogations. Some police departments already videotape interrogations as a matter of routine procedure, and videotaping is required by court decision or statute in certain states. *NACDL opposes a Victims’ Rights Amendment, which would grant crime victims undue power to influence and impede the decisions of judges and prosecutors in courts across the country.* Without question, victims of crime should be treated with dignity and respect throughout the criminal justice process. But proposals that would amend the Constitution to provide numerous entitlements to crime victims, so that they might determine the pace and development of criminal cases, are inimical to the primary obligations of our criminal justice system. NACDL stands alongside many crime victim advocacy groups, the National Sheriff’s Association, hundreds of law school professors and constitutional scholars, and countless other thoughtful observers of America’s justice system in opposition to the ill-considered proposal for a Victims’ Rights Amendment to our nation’s charter. Victims of crime already have many participatory and other rights in criminal proceedings as a result of state and federal legislation. A Victims’ Rights Amendment to the Constitution would signal a radical break with over 200 years of jurisprudence and practice, critically altering the balance between state and federal power in these matters. At great financial cost, it would leave us with a judicial system no longer dedicated to determining guilt or innocence, but preoccupied with airing rage and seeking retribution. *Detailed position papers may be available. For more information, please contact:* NACDL 1660 L St., NW, 12th Floor Washington, DC 20036 (202) 872-8600 Fax (202) 872-8690 assist@nacdl.org www.nacdl.org
	National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org