Part I - Rationing Justice: The Underfunding of Assigned Counsel Systems
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This report documents the unreasonably low rates of compensation paid to private attorneys who represent indigent defendants in state courts. The lack of adequate funding restricts the pool of attorneys willing to represent indigent defendants and creates conflicts of interest for attorneys by encouraging them to limit the amount of work they perform on a case for an indigent client. More experienced attorneys refuse to participate in assigned counsel systems that pay hourly rates far below the market rate while younger attorneys, who are often burdened by student loans, never even consider joining the defense bar. Even more troubling is the possibility that low hourly rates will encourage some attorneys to accept more clients than they can effectively represent in order to make ends meet. The result is an inadequate, inexperienced, overworked and inherently conflicted pool of attorneys accepting court appointments in our criminal courts.
Read the Report (PDF) | Gideon at 50 Project Overview
National Indigent Defense Reform: The Solution is Multifaceted
This report summarizes the highlights of the wide–ranging discussion and innovative proposals for reform discussed during a focus group convened in 2012 by NACDL and the American Bar Association Standing Committee on Legal Aid and Indigent Defendants. The report is divided into three broad topics. First, the report discusses front-end reforms such as reclassification and diversion, which help reduce the number of cases entering the system. Next, the report turns to the delivery of services, including the importance of standards and commissions, the central role of the private bar, and development of training. Third, the report considers the need for collaboration and cooperation with others within and outside the criminal justice system in order to achieve significant and sustainable reform.
Read the report. (PDF)
Electronic Surveillance & Government Access to Third Party Records
In February, 2012 NACDL’s Board of Directors adopted a white paper report on Law Enforcement Access to Third Party Records. Federal laws protecting individual privacy rights in electronic communications have not been meaningfully updated in over 25 years, even though many of today’s technologies were not even conceived of when Congress considered the legislation and when the Supreme Court created the “Third Party Doctrine.” Because of society’s reliance on third party carriers, such as Internet service providers, cellular phone service providers, and “cloud” computing services, to communicate, work and socialize, privacy laws need to be updated to keep pace with today’s evolving technologies. This white paper discusses the current status of the law, including federal laws such as the Electronic Communications Privacy Act, and Supreme Court precedent, including United States v. Jones, and concludes with recommendations for reform, such as a recommendation that law enforcement officers should be required to obtain a warrant based on probable cause before they can access the content of electronic communications or geolocation information.
Read the report. (PDF)
Evaluating Grand Jury Reform in Two States: The Case for Reform
NACDL issued a groundbreaking new report on restoring and reforming the grand jury system-- Evaluating Grand Jury Reform in Two States: The Case for Reform. This research reflects an in-depth study 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. Four key reform recommendations emerge from the research: (i) defense representation in the grand jury room, (ii) production of witness transcripts for the defense, (iii) advance notice for witnesses to appear, and (iv) the presentation of exculpatory evidence to the grand jury.
Read the report. (PDF)
Three Minute Justice: Haste and Waste in Florida's Misdemeanor Courts
Nearly a half million people, or approximately three percent of Florida's adults, pass through the state's misdemeanor courts each year. Most are found guilty. The average court appearance lasts as little as three minutes.
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Proposed 18 USC § 3014, Duty to Disclose Favorable Information and Commentary
Many recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) has endorsed model legislation drafted by NACDL's Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case.
Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law
The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly undertook an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2003 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislatives process: Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress's authority to make criminal law to unaccountable regulators.
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Principles and Recommendations for Strengthening Forensic Science in the Courtroom
Forensic science evidence presented in court is often based on speculative research, subjective interpretations and inadequate quality control procedures, according to a report just released by the National Association of Criminal Defense Lawyers (NACDL). Police need to be taken out of the laboratory, and the "crime labs" need to be taken out of the police station, with the goal of ensuring the scientific integrity of forensic science evidence. Neutrality and objectivity are as essential to preventing wrongful convictions and exonerating the innocent as they are to solving crimes and convicting the guilty.
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America's Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform
The debate over drug enforcement policy in the United States is almost always framed in stark terms premised on narrow options. Conventional thinking about criminal justice issues—prison, community corrections, probation, or possibly some sort of diversion program for minor offenses and first-time offenders—has not worked, nor has it abated the addiction problem. Drug courts have swept the nation without much debate or input from the criminal defense bar. That input is long overdue.
This report seeks to inform and redefine the debate by considering and challenging the fundamental criminal justice lens through which drug-related issues are evaluated. Because "the definition of the alternatives is the supreme instrument of power," accepting the criminal justice paradigm legitimizes drugs courts while ignoring other smart, fair, effective, and economical approaches. The report also summarizes the history and evolution of drug courts, evaluates their operation and effectiveness, makes an overarching recommendation on the treatment of addiction, and offers a number of recommendations to ensure that the procedures and practices in drug court comply with constitutional and ethical norms
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Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts
The explosive growth of misdemeanor cases is placing a staggering burden on America's courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers' money is wasted.
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Federal Grand Jury Reform Report & Bill of Rights
When the grand jury was incorporated into our constitutional structure, its primary role was to protect the individual from unfounded accusations. Today, the federal grand jury today functions primarily as a tool of the federal prosecutor. Employing the power of compulsory process in a secret proceeding, the prosecutor investigates and determines, with virtually no check, who will be indicted and for what. The National Association of Criminal Defense Lawyers (NACDL) created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions.
Read the report (PDF).
Proposals to Reform the Federal Money Laundering Statutes
Money laundering, or the transfer of criminally derived money into legitimate channels, statues were originally enacted to curb drug trafficking and organized crime. However, the purview of the money laundering laws has slowly grown to include a wide range of activities, including routine business transactions. At the same time, courts have minimized and blurred the evidentiary requirements for establishing money laundering. As interpreted and applied, the current law is a cruel trap for unwary individuals and businesses that inflicts felony convictions, draconian and inflexible prison sentences, and ruinous asset forfeiture. NACDL has proposed several technical statutory amendments to rectify the money laundering regime’s most serious flaws by simplifying and clarifying current law, facilitating compliance efforts by individuals and businesses, and by focusing federal law enforcement on serious misconduct.
Read the report. (PDF)