From the President: One Year in the Fight for Justice

Steven Benjamin summarizes the work accomplished by NACDL from August 2012 through July 2013.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Indigent Defense

Chief among the goals I addressed last year was the proper celebration of the 50th anniversary of Gideon v. Wainwright. I said at the time that after 50 years, “defenders still struggle with paltry resources, low pay, and crushing caseloads. The promise of Gideon, it seems, might be the promise of a warm body with a law license and not much more.” From this perspective, we might have spent the year exclusively discussing the failures of Gideon and advocating for meaningful reform. But while acknowledging the failures of Gideon, I also said, “It is because of who we are that the promise of Gideon has meaning and strength. The strength of Gideon is in what we do. We come forward to confront injustice when no one else will. We speak for those who have no voice, sacrifice for those who have no money, and defend with every ounce of our being those who have no means to answer an accusation that would take their freedom or extinguish their life.”

It would have been wrong to devote the 50th anniversary of Gideon to criticism without celebration of the sacrifice and success of the defenders who make our system work. So we did both. To launch our discussion of the unfulfilled promise of Gideon, NACDL co-sponsored a November academic symposium at Washington & Lee University School of Law, Gideon at 50: Reassessing the Right to Counsel. In addition, we co-sponsored Gideon at 50: Fundamental Right, Ongoing Challenge with our host, The Heritage Foundation, to bring this critical issue to a broad and politically diverse audience. We also issued two reports on the indigent defense crisis: the first, National Indigent Defense Reform: The Solution is Multifaceted, with the ABA; and the second, Part I: Rationing Justice: The Underfunding of Assigned Counsel Systems. Finally, NACDL worked to counter efforts to undercut an already strained indigent defense delivery system, including at the highest levels of the Department of Justice, where NACDL objected forcefully about inadequate funding and independence of the federal indigent defense system.

Forensic Science

Another goal I identified last year was the need to increase the knowledge and use of science by criminal defense lawyers in their representation of the accused and the affirmative proof of their defense. In February 2013, NACDL presented a program designed to do just that. NACDL’s Midwinter Meeting and Seminar in Washington, D.C. — Reasonable Doubt and Actual Innocence: Winning Your Case with Cutting-Edge Science — was the first meeting ever held simultaneously with the annual meeting of the American Academy of Forensic Sciences (AAFS). Attendees at NACDL’s conference had special access to the AAFS Exhibition Hall, including significant networking opportunities with the thousands of forensic scientists meeting just across the street from NACDL’s meeting. At that same Midwinter Meeting, NACDL’s Board of Directors adopted a resolution Opposing the use of Familial DNA Searching during Criminal Investigations as well as a detailed resolution that to the extent that such searches are permitted, the federal government or states should enact legislation authorizing the use familial searches only if such searching, at a minimum, adheres to specific requirements outlined in that resolution.

Hair Microscopy Review

During the term of NACDL Immediate Past President Lisa Wayne, the Association adopted a resolution calling upon the federal government to conduct a comprehensive review of cases in which potentially flawed forensic evidence was utilized. As reflected in this month’s cover story in The Champion, this effort, supported in part by a wrongful conviction review program grant from BJA, is now in full operation, with NACDL staff working with the Innocence Project and the FBI to review thousands of cases in which flawed forensic opinions may have resulted in wrongful convictions. In that regard, NACDL needs all defense lawyers in the United States to aid in this effort to identify cases in which hair microscopy evidence was used in a conviction, regardless of whether the FBI was involved in the analysis or testimony involved in the conviction. Anyone who has any knowledge of this evidence being used in a case, or who would like to assist on this important project, is asked to please contact NACDL’s Resource Counsel Vanessa Antoun at or 202-465-7663.

Fourth Amendment

A third goal I identified last year was the preservation of the Fourth Amendment. At the Executive Committee retreat in Washington, experts gave a full day’s presentation of the threat to the Fourth Amendment and the exclusionary rule. I said last August that if we did not act immediately, a right that defines this country — the right to be free of drones and constant government surveillance — would become a meaningless ideal we are powerless to enforce. In October 2012, NACDL hosted an event at the National Press Club in Washington to preview the upcoming Supreme Court arguments concerning the use of dogs in warrantless searches. This program was successful in educating the journalists who would report on the arguments, as well as on the issues and ramifications of those cases. At its Spring Meeting in May, NACDL presented a two-day program in New York City on suppression and the exclusionary rule.

Racial Disparity in the Criminal Justice System

On July 17, 2013, NACDL released Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System. This conference report, prepared by Consultant Tanya E. Coke, is based upon a multi-day, open and frank discussion among a distinguished group of criminal justice experts, including prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates. This three-day meeting was held in October 2012 at the New York County Lawyers’ Association’s historic Home of Law, and was co-sponsored by the following organizations: the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, NACDL, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers’ Association.


On October 27, 2012, NACDL responded to multiple requests for an ethics opinion regarding federal plea agreements that bar collateral attacks on convictions under 28 U.S.C. § 2255. After full and vigorous discussion, the Board of Directors adopted Formal Opinion 12-02, determining that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The opinion further states that prosecutors may not ethically propose or require such a waiver. The opinion describes an attorney’s duty when the government attempts to extract such a waiver. NACDL answered the call for help, and provided an invaluable tool for excising these unconscionable provisions.

Brady v. Maryland

NACDL devoted the entire May 2013 issue of The Champion magazine to issues concerning Brady in this, the 50th anniversary year of Brady v. Maryland. In addition, the association has continued its tireless efforts in the area of discovery reform, including its support for the codification of these disclosure requirements.

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Congressional Overcriminalization Task Force

In no small measure a credit to the hard work of NACDL, the U.S. House of Representatives recently created a Task Force on the Problem of Overcriminalization in America. And NACDL leaders have been at the witness table on Capitol Hill at each of the hearings held thus far by this new and important task force.

New Resources

In the last year, in addition to the numerous additional briefs, motions and other materials added to NACDL’s Resource Center, NACDL launched new tools for its members and the public: the Restoration of Rights Project, the Domestic Drone Information Center, the Grassroots Advocacy Resource Center, and Excessive Sentencing: NACDL’s Proportionality Litigation Project. In late winter, NACDL Press and Thomson Reuters Westlaw released the second book of their joint publishing venture, Collateral Consequences of Criminal Convictions: Law, Policy and Practice by Margaret Colgate Love, Jenny Roberts, and Cecelia Klingele. This comprehensive resource for practicing civil and criminal lawyers, judges, and policymakers identifies the legal restrictions and penalties that result from a criminal conviction beyond the court-imposed sentence. That text is available for purchase on NACDL’s website.

An Honor to Serve

My term as your president is at a close, and it has been the greatest honor of my career. The volunteer leadership and professional staff of NACDL make it the leading voice for criminal justice in America. My friend, brother, and colleague Jerry Cox, as our new president, will further elevate the standing of this association, and will lead it to do the great and important work we must do. I congratulate him, as I congratulate each of you, for standing up in the tireless fight against injustice. And I thank you for the honor it has been to serve as your president.

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