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Time passes quickly. Serving as NACDL’s president for the past year has been a wonderful experience, but it is already time to move on. My successor, Carmen Hernandez, is a great leader and motivator, and I am sure you will give her the same support you gave me. I thank my family and law partners for their understanding and patience while I worked with my other “family” and other full-time job at NACDL.
Let’s take a moment to reflect on the events that transpired during the past 12 months and look at the challenges that lie ahead.
My year started with the search for a new executive director. With Norman L. Reimer at the helm, NACDL will go to levels it has never reached. His coming on board was the biggest and best thing that happened during my term.
One of the most important issues we addressed this year was the need to reform traditional police eyewitness identification procedures. Traditional lineups, in which all suspects stand in one room, are resulting in mistaken eyewitness identifications and wrongful convictions all across the country. NACDL filed a Freedom of Information Act lawsuit in February against Illinois police departments that participated in a study finding that eyewitnesses are less likely to falsely identify an innocent suspect when traditional lineups are employed. The findings of the Illinois study stand in stark contrast to all the prior research finding that false identifications are substantially reduced when eyewitnesses view suspects one at a time. The Illinois police departments refused to provide the underlying data and protocols supporting their publicly funded study. By filing the lawsuit, we hope to get our hands on the data so that experts in research design can conduct a review.
For nearly 20 years, NACDL and other organizations have urged an end to the unfair disparity between the sentences handed down for possession of crack cocaine and those imposed for possession of powder cocaine. Carmen Hernandez testified before the U.S. Sentencing Commission last fall. She noted that the current sentencing guidelines — requiring the same prison sentence for one gram of cocaine base or 100 grams of powder cocaine — have resulted in prisons overflowing with low-level drug dealers and addicts who would be better off in treatment programs. The commission recently sent proposed amendments to Congress that would ease crack sentences. If Congress takes no action on the proposed amendments, they will become effective on Nov. 1. The revised guidelines will be a sensible first step toward ending the outrageous disparity in cocaine sentencing.
There was a major breakthrough in Virginia’s indigent defense system. In April, the Virginia Legislature passed a bill making court-appointed counsel fee caps waivable upon a showing of good cause. Prior to this new legislation, the state operated under a hard cap system, i.e., the maximum amount an attorney could be paid was strictly limited and could not be exceeded. For example, $445 was the maximum payment for a felony charge carrying a sentence of up to 20 years in prison. This new legislation means that Virginia has turned an important corner, but we know that our work is not done. NACDL and its partners in this endeavor will continue to fight, making sure waivers are fully funded and other needed reforms are put in place to create a balanced and effective criminal justice system.
In Louisiana, NACDL's many years of effort have also borne fruit. Comprehensive reform of the indigent defense system passed both houses of the State Legislature by extraordinary numbers. The legislation will go into force in the coming year. There is no doubt that the NACDL-supported litigation was instrumental in bringing about this result.
One of NACDL’s strengths is its ability to join forces with individuals and advocacy groups to bring about change. On the white collar crime front, NACDL joined the ABA, ACLU, Association of Corporate Counsel, and the U.S. Chamber of Commerce in arguing that corporations should not be compelled to disclose privileged information to the government after conducting internal investigations. In the past, when deciding if they would file charges against a corporation, federal prosecutors considered whether the corporation would agree to waive the attorney-client privilege and refrain from paying the legal fees for its employees. We were pleased when Sen. Arlen Specter (R-Pa.) introduced the Attorney-Client Privilege Protection Act of 2007, which would prevent federal prosecutors from requesting or conditioning treatment on a corporation’s disclosure of any communication protected by the attorney-client privilege or work product protection. The legislation would also change the government’s policy on using the payment of attorney’s fees as a consideration in making a charging decision, which has basically meant that corporations have stopped paying attorney’s fees when an employee is under investigation or subject to prosecution. NACDL was honored when Sen. Specter first announced this legislation in September at our 2006 White Collar Crime Conference.
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It was a pleasure to join Karen J. Mathis, president of the ABA, and Mathias H. Heck Jr., president of the National District Attorneys Association, in supporting the John R. Justice Prosecutors and Defenders Incentive Act of 2007. If passed by Congress, this legislation will establish a program of student loan repayment assistance for law school graduates who agree to remain employed for at least three years as state or local criminal prosecutors or as state, local, or federal public defenders. Jurisdictions across the country will be able to attract and retain qualified lawyers who, due to huge education loans, are not willing to consider public service positions.
Another highlight of my presidency was traveling to the nation’s capital to participate in the federal summit on crime policy that was sponsored by the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security. The topics addressed included taped interrogations and grand jury reform. It was an honor to appear on behalf of NACDL, and personally, it was just awesome.
Some of this year’s developments have been troubling. Pursuant to civil commitment statutes, states are confining sex offenders for periods that exceed their prison terms. Twenty states, with New York joining the ranks in March, hold sex offenders indefinitely in treatment centers that may or may not provide effective treatment. Civil commitment can cost four times as much as prison, and the claim of a reduction in recidivism is already being questioned.
Are you concerned about your privacy? You should be. We now know that the FBI has been abusing the new powers it obtained under the Patriot Act. Through the use and documented misuse of national security letters, the FBI can request phone records, Internet activity, and e-mails of people suspected (or not) of terrorism. The request for records is not reviewed in advance by a judge. Are these requests even reviewed after-the-fact? According to the Washington Post, an internal government audit concerning the national security letters found the FBI used the letters improperly or illegally over 1,000 times. We must continue to insist that government officials respect the rule of law. Any type of unchecked power might lead to even more abuse.
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NACDL is moving forcefully in other areas of emerging concern. The proliferation of sex offender registration requirements, residency restrictions, and civil commitment provisions poses grave dangers for many who present no reasonable threat to society. NACDL’s Sex Offender Policy Task Force is an effective vehicle to redress these excesses. The emergence of problem-solving courts, especially drug courts, offers valuable opportunities for treatment rather than punishment, but the move away from the traditional adversarial model must be approached with due regard for fundamental liberties. NACDL’s Task Force on Problem-Solving Courts is poised to investigate and report on recent developments in this area. In addition, new technologies are vastly altering the discovery process. The newly formed Task Force on Electronic Discovery will study and report on these important developments. I am confident that through each of these initiatives NACDL will continue to discharge its national mission to secure due process for all.
Finally, habeas corpus remains in danger. We must make sure that it is available to all, including the detainees at Guantanamo Bay. The concept of habeas corpus, in existence for 1,000 years, says individuals cannot be arrested and held without being brought before a judge and charged with a crime. Twenty years from now, I hope we’re not sitting around saying, “Remember habeas corpus? Man, those were the good old days.”
If habeas is still around in 20 years, it will have survived because members of NACDL were willing to fight for it with unrelenting effort. Whenever our freedoms are threatened, I am confident NACDL will meet each challenge head on, and we will be successful in making our country better and insuring that it lives up to the guarantees in the Constitution.