From the President: The State of NACDL

The State of NACDL Cynthia Hujar Orr July 2010 5 As I approach the end of my presidency, in spite of a tight economy and the resulting budget cuts, NACDL continues to meet its core policy objectives without sacrificing morale, quality, or resolve. What follows is a skim across the surface of

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As I approach the end of my presidency, in spite of a tight economy and the resulting budget cuts, NACDL continues to meet its core policy objectives without sacrificing morale, quality, or resolve. What follows is a skim across the surface of a wide and deep expanse of criminal justice reforms. 

During the past year, NACDL made substantial improvements in operations and governance and member services. Early next year, the significant technological advancements and arduous data migrations conducted in-house will result in a robust electronic interface with our members. And we have learned how to better network with each other while preserving useful services. 

In 2009 NACDL issued its Misdemeanor Report,1 which has been an essential tool in indigent defense reforms across the nation. Participants at the DOJ Indigent Defense Symposium mentioned the report frequently. At this same event, Attorney General Eric Holder spoke passionately about the right to defense counsel.2 He insisted that every state must have a public defender system. The Misdemeanor Report also has had an effect at the grassroots level, stalling efforts in many jurisdictions to implement low-bid contract systems. 

In courtrooms in several jurisdictions, NACDL and its allies achieved success on behalf of defendants. For example, NACDL filed an amicus brief challenging New York’s broken indigent defense system,3 establishing the ability of plaintiffs to bring challenges to systemic shortfalls in that state. Lawyers supported by the John Adams Project commenced an action that halted unfair military commission proceedings. Conservative and liberal groups supported the defense function in these difficult cases, despite a McCarthy-style attack on counsel. We are confident that these lawyers have acted and continue to act in the best tradition of our profession. Though we still oppose commissions, NACDL continues to call for more transparency and process in the development of fair Commission procedures. 

We were still running under a full head of steam when we released and promoted the Problem-Solving Courts Report,4 copies of which members of Congress and the DOJ requested. This report and our joint report with the Heritage Foundation, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, garnered a great deal of consideration by the U.S. Sentencing Commission. I testified before the Commission to support problem-solving court features in the Sentencing Guidelines, which will take effect this year. And I utilized Without Intent in other testimony to support elimination or diminution of mandatory minimums. The Commission took notice of our recommendation that criminal laws must be directed to the criminal law committee in both chambers of Congress to ensure the quality of and necessity for each law. We persuaded the Commission that legislators can be uninformed about a matter and might act precipitously in the face of political or public pressure resulting in a measure that is less than deliberate.5 

The U.S. Supreme Court issued several decisions in 2009-2010 that impacted the criminal defense community. After the Court clarified that counsel must advise clients about the immigration consequences6 of their criminal cases and that a second drug misdemeanor does not constitute a dangerous felony in deportation proceedings, NACDL and others asked Attorney General Holder and Homeland Security Secretary Napolitano to allow immigrants to challenge anew their deportation or removal. The Champion published excellent articles advising our members of their obligations under Padilla v. Kentucky. And NACDL kept death penalty lawyers apprised of the favorable decisions concerning equitable tolling, the meaning of an act of violence in the federal death penalty statute, and the viability of a second writ of habeas corpus after the imposition of a second death sentence.7 

At Supreme Court events, it was clear that NACDL enjoys respect in the Court. Justices commented on our amicus briefs and complimented our members. The dedicated lawyers who prepare the trustworthy and scholarly amicus briefs should be raised on our shoulders and paraded as a national treasure. The most recent victories were in the honest services cases — Black, Skilling, and Weyhrauch.8 In Skilling, the Court held that the honest services fraud statute, properly confined, criminalizes only schemes to defraud that involve bribes or kickbacks. On a separate issue, unfortunately, the Court ruled that pretrial publicity and community prejudice did not prevent Jeffrey Skilling from obtaining a fair trial. In another major decision, NACDL and its allies lauded the Court for its Graham v. Florida decision prohibiting the imposition of a sentence of life without parole on a juvenile offender who did not commit a homicide. 

There is still work to be done to protect the Fourth and Fifth Amendment rights of defendants. NACDL took the lead issuing a joint letter with coalition partners criticizing the DOJ’s announced intention to seek relaxation of the Miranda warnings required by the Constitution. Moreover, our Fourth Amendment Advocacy Committee has begun to prepare a report on the modern expectation of privacy in electronic communications. The committee’s work is particularly timely in light of the decision in Quon, in which the Supreme Court stated: “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The committee is also preparing to engage in impact litigation concerning the border search of attorneys’ computers. 

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NACDL responded to the NAS Report, Strengthening Forensic Science in the United States: A Path Forward,9 by establishing a task force that issued recommendations for improving forensic science, taking an important stand against prosecution use of science that has not been validated. We continue to work with Congress to end the glossing over of forensic science’s failings and its flawed self-regulation within law enforcement control. 

This year, for the first time, NACDL offered prestigious diversity fellowships and attracted over 100 highly qualified applicants in very short order. Our fellows are now enjoying their work with experienced lawyers in New York and Washington, D.C. They attended portions of our June working retreat, as did the leaders of the Long Range Planning Committee. 

We have also been very attentive to discovery and fair trial reforms. We have a representative attending the meetings of the Federal Rules Advisory Committee, a representative on the ABA Standards Committee, and a representative on the ABA President’s Committee on the Attorney-Client Privilege. NACDL has also pushed for measures in DOJ, Congress, and local legislatures to require prosecutors to provide favorable evidence to the defense. We have been successful in securing widespread acknowledgment that prosecution misconduct is a current problem that requires continued diligent correction. DOJ issued new prosecution guidelines for entities on May 19, 2010, that expressly rescind the Ashcroft policy of charging the most serious readily provable offense.10 

Several NACDL members have engaged in discussions with DOJ officials on various issues. While we cannot tell what direct affect these conversations have had, the changes in the DOJ’s position on mandatory minimums, problem-solving courts, drug policy, discovery and charging make it appear that we are being heard. I have been kept informed by the White House on issues ranging from Drug Policy to the BP Oil Spill. 

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NACDL committees are comprised of hard working volunteers who rise to the occasion when someone identifies a need that merits the Association’s attention. For example, the Corrections Committee met with the FCC regarding reasonably priced inmate phone access and issued a complaint regarding prison rape. I instituted joint meetings of committee chairs at each quarterly meeting that resulted in many coordinated projects by multiple committees. I praise the collegiality shared in what I like to think of as our national law firm and think tank. In a group comprised of very large egos, people were able to stand up to withering attacks, accept change, and move ahead together to achieve goals we only imagined might be possible. Our White Collar Crime Committee membership is more inclusive and has, in partnership with the Book Committee, launched NACDL Publishing. The first book project will be about White Collar Winning Jury Instructions. 

These extraordinary accomplishments were the result of our working relationships with the Board (which runs the association), the officers, committees, members, and NACDL headquarters in the nation’s capital.11 Close coordination and resource sharing among the best and the brightest produced enormous advances. 

While this farewell article does not begin to pierce the surface of all that you have accomplished this year through your participation in NACDL, I hope that it takes your breath away. In NACDL you have an opportunity to make a difference that affects many. I am proud to say that everything I set out to do has been accomplished. As I pass the torch, I know you will accomplish much more. I look forward to watching your progress and taking my role once again by your sides as an advocate and servant. 

Let’s encourage courts, legislatures, the executive branch and each other to be mindful that what happens in drug cases eventually happens in the white collar case, the Fourth Amendment is eviscerated. What happens in death penalty cases eventually happens in white collar cases, the diminishment of the great writ. What happens in white collar cases, vicarious liability, happens in pedestrian cases, parental liability for juvenile crimes. We have in NACDL a very strong collaborative machine and together we can assure that each person who walks through the halls of justice receives the best that we can provide. We must be faithful, embrace change and go forward together, shoulder to shoulder, into this bright and uncertain future. 


  3. Hurrell-Harring v. New York, 15 N.Y.3d 8, 2010 WL 1791000 (N.Y. 2010). 
  5. The federal criminal code contains over four thousand criminal offenses; many lack a mens rea requirement. This usually happens because congressional crime committees have not vetted the measure and rulemaking is delegated to unelected officials with little understanding of the criminal law. NACDL most recently criticized criminalization of routine financial activities in the Dodd-Frank Bill.
  6. Padilla v. Kentucky, No. 08-651 (March 2010) and Carachuri-Rosendo v. Holder, No. 09-60 (June 2010).
  8. Series?OpenDocument.
  9. to read the report.
  10. 2019%2010.pdf.
  11. I think of our home office as similar to a law firm with which I am working as lead counsel on a case. My team (the Board of Directors and active Past Presidents, committee participants, and members) is preparing the defense theory and identifying the most favorable legal position in the case. My colleague, Norman Reimer, and his team run the home office. It is a strong machine that provides enormous and powerful resources for members. It is as if we get to try our case with everything we want at our fingertips.