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Earlier this fall, NACDL conducted a survey to assess the Association’s value to the national defense community. More than 1,800 members and 1,400 non-members participated in the survey. The full analysis of the data obtained in the survey is still in progress, but one response is particularly gratifying. In a question designed to elicit perceptions of NACDL services and initiatives, the one attribute with which respondents most strongly agreed was that “NACDL promotes the proper and fair administration of criminal justice.”1 Last month, NACDL’s involvement in a number of policy projects put the exclamation point on that statement. During October 2011, NACDL tackled a broad range of criminal justice system issues in many venues across the country.
NACDL engaged in a trifecta of activity in the Windy City. Tending to its core mission of providing training and support for the nation’s criminal defense bar, NACDL held its Fall Seminar at the historic Drake Hotel, where the Association was founded in 1958. Simultaneously, at two other locations, NACDL entities focused on serious threats to the justice system and the clients who pass through it. NACDL’s Task Force on Judicial Independence co-sponsored a symposium that focused on the corrosive effect of money in judicial elections.
The program, which was organized by Professor Andrea Lyon, was a joint endeavor with the DePaul University College of Law Journal for Social Justice. The program featured presentations by distinguished scholars, leading reformers, and two jurists who recently endured the judicial campaign wars.2 The featured judges included Thomas Kilbride of the Illinois Supreme Court, who narrowly survived a blistering attack, and former Iowa Supreme Court Justice David Baker, who did not survive.3 The experiences of these judges, bolstered by video clips of the most misleading and incendiary attack ads, confirmed what the other panelists addressed in various ways — money in judicial elections poses a grave threat to the criminal justice system. And criminal defense lawyers cannot afford to remain on the sidelines when judges are attacked for attempting to ensure due process for the accused.
Just a few blocks away from the judicial independence symposium, NACDL’s Task Force on the Restoration of Rights and Status After Conviction convened the first of several hearings. Over the course of two days, the task force heard testimony from 25 witnesses representing all three branches of government and numerous entities concerned with restoration of rights for the convicted. The overarching goal of the task force is to advocate for changes in laws and policies to dismantle the functional exile to which convicted persons are now consigned.4 Among the witnesses were the General Counsel and Associate General Counsel to Illinois Gov. Pat Quinn, re-entry program directors, formerly incarcerated individuals, local employers committed to hiring the formerly incarcerated, agency heads, and the Presiding Judge of Cook County Circuit Court, Criminal Division.
The task force will carefully evaluate all the testimony and distill a compendium of recommendations after several more hearings throughout the country. As this long process unfolds, the task force and NACDL members can take enormous pride and draw inspiration from the testimony of leadoff witness Congressman Danny Davis, from the Seventh District of Illinois, a House sponsor and champion of the Second Chance Act.5 Davis said, “[I]t warms my heart and fills me with hope that NACDL has agreed to take on this issue.” Noting that this work could aid “millions who might never be able to work again,” he urged the task force to look at how to enable people to overcome criminal records and regain access to opportunity. Davis acknowledged that there has been some progress in recent years, but indicated the fight is not over: “I do not want to be in the basement and think that I am in the penthouse. We have a long, long way to go. I really thank you. The fact that NACDL is willing to take on this task makes my day.”
On October 28 and 29, NACDL participated in the 2011 University of Pennsylvania Law Review Symposium, Sentencing Law — Rhetoric and Reality. The program gathered the nation’s leading experts on sentencing, including judges, academics, practitioners, legislators, and prosecutors. NACDL joined Right On Crime, a group focused on crime policies including prison reform, in co-sponsoring the featured panel, The Politics of Sentencing.6 The panel, which was moderated by Professor John Dilulio of the University of Pennsylvania, included Pennsylvania State Sen. Steward J. Greenleaf, Asa Hutchinson, an NACDL member in private practice at the Asa Hutchinson Law Group, PLC and actively involved in the Right on Crime initiative, and former head of DEA and Under Secretary of the Department of Homeland Security, U.S. Rep. Robert C. “Bobby” Scott, ranking member of the House Judiciary Subcommittee on Crime, and former FBI Director and U.S. District Judge William S. Sessions, currently a Partner at Holland Knight, LLP.7
A consensus theme that emerged from the proceedings, particularly during the featured panel, was that the nation must relax the severe mandatory minimum sentences that have led to mass incarceration. There was considerable discussion about how to achieve this goal, either through political reform or innovative litigation. Specific topics included proportionality and theories of punishment, the future of the federal sentencing guidelines, the civil consequences of conviction, white collar sentencing, problem-solving courts, mandatory minimums and the “war on drugs,” and racial justice. NACDL President Lisa M. Wayne, who served on the racial justice panel, made the case that the nation’s approach to substance abuse is a primary cause of racial injustice in the criminal justice system.8
For the third consecutive year, NACDL co-sponsored the Texas Indigent Defense Summit. NACDL Indigent Defense Counsel John Gross represented NACDL. John gave a presentation on national developments in indigent defense reform, providing specific updates on developments in Colorado, Michigan, New York, and Pennsylvania. In addition, he expressed concerns that the continuing economic pressure on states and localities is causing delay, and in some cases avoidance, in the appointment of counsel.
Even while NACDL was pursuing the fair administration of justice on the road, there was plenty happening back in Washington. NACDL convened a two-day conference on the implications and possibilities that may emerge from the Supreme Court’s historic decision in Graham v. Florida.9 In holding that the Eighth Amendment bars the imposition of life without the possibility of parole for a juvenile convicted of a non-homicide offense, the Court relied upon a proportionality analysis. NACDL invited two groups of academics, practitioners, and reform leaders to brainstorm how this case may be used by practitioners.
The first day focused on whether Graham may have some applicability in the context of adult sentencing. The second day focused solely on the juvenile context, especially looking at how adolescent development theory may be used to push for better outcomes and additional reform. The results of these sessions eventually will be shared with NACDL members via practice advisories and through the Resource Center on NACDL’s website.
NACDL has also begun to consider the criminal justice system implications of the recent Predator drone attacks on U.S. citizens overseas. The recent killing of three U.S. citizens in Yemen, including a juvenile, cannot be lightly dismissed. Although one may justifiably detest the words and purported deeds of Anwar al-Awlaki, the killing of citizens in this fashion has raised concerns across the political spectrum. NACDL brings a unique perspective to this issue because the primary role of criminal defense lawyers is to ensure that all prosecutions are conducted with scrupulous adherence to the Constitution, and that the ultimate punishment must never be imposed without due process. For that reason, NACDL has filed a Freedom of Information Act request that specifically seeks to obtain any Department of Justice legal memoranda that define the process and standards by which the executive branch unilaterally imposes capital punishment.10
Finally, NACDL continued its efforts to heighten awareness about overcriminalization. On October 26, White Collar Crime Policy Director Shana Regon participated in a panel at the U.S. Chamber of Commerce Institute for Legal Reform’s 12th Annual Legal Reform Summit. The panel, The Very Long Arm of the Law: A Look at the Impact of Federal Regulatory and Enforcement Practices, was moderated by David W. Ogden, a partner and Co-Chair, Government and Regulatory Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP. In addition to David Ogden, panel participants included Peter B. Hutt II, Partner, Health Industry Practice Group, Akin Gump Strauss Hauer & Feld LLP, and Henry E. Juszkiewicz, Chairman and Chief Executive Officer, Gibson Guitar Corporation.
The panelists gave their perspectives on overly expansive criminal enforcement activity under the False Claims Act, the Lacey Act, exclusion authority, and activities at the Securities and Exchange Commission. Shana Regon’s remarks addressed the Foreign Corrupt Practices Act (FCPA). She noted some recent developments including growing concerns about an excessively broad definition of “foreign ownership” and the fact that, for the first time ever, the government conducted an FCPA “sting operation” using wiretaps and informants. Among numerous other issues, Shana Regon also discussed the expanding use of the “willful blindness” instruction in the FCPA context to satisfy the willfulness requirement in the statute. This is yet another example of the continuing evisceration of mens rea, a matter of great concern to NACDL.11
It has been quite a month of activity across the spectrum of criminal justice issues. This October policy initiative snapshot demonstrates that the perception that NACDL promotes the proper and fair administration of criminal justice is right on the money. Rest assured that this commitment is not limited to one month or one year. It is this bar association’s core mission now and for as long as there are criminal defense lawyers dedicated to the ideal of justice.
- As further evidence that NACDL’s public policy work is highly valued, the following attributes were also within the top five: (1) NACDL fosters integrity and expertise in criminal defense law; (2) NACDL is an effective voice for justice and due process for the accused; and (3) NACDL is an effective representative of the defense bar nationwide.
- Along with Professor Lyon, the program included Professors Jed Shugerman of Harvard Law School, Amanda Frost of American University College of Law, and Stefanie Lindquist of the University of Texas at Austin School of Law. In addition, Burt Brandenburg, the Executive Director of Justice at Stake, and NACDL President Lisa M. Wayne, who has strongly urged NACDL to aggressively support judicial independence, presented at the event.
- The proceedings at the symposium will be published in the Journal for Social Justice, but an excellent account of the event appeared in a Huffington Post account: http://www.huffingtonpost.com/andrea-lyon/iowa-gay-marriage-judges_b_1032787.html.
- For a description of the task force’s mission, go to http://www.nacdl.org/NewsReleases.aspx?id=22476&libID=22446.
- Second Chance Act of 2007, Public Law No: 110-199 (April 9, 2008).
- Key organizers of the program were the editors of the University of Pennsylvania Law Review, Penn Law Professor Stephanos Bibas, and Malia Brink, NACDL’s Director of Institutional Development and Counsel for Special Projects, who is a Penn alumna and a Lecturer-in-Law.
- The full roster of panels and panelists is available on the Penn Law Review website (http://www.pennumbra.com/symposia).
- Margaret Love, a member of the NACDL Task Force on the Restoration of Rights and Status After Conviction, served on a panel exploring the civil consequences of conviction. Malia Brink moderated the panel on problem-solving courts, and I was privileged to serve on a panel that considered the future of mandatory minimum sentences. Malia Brink submitted a law review article that will focus on misdemeanor justice. And Lisa Wayne and I co-authored an essay on how mandatory minimums and unfettered prosecutorial control over sentence reductions for cooperation subvert justice and exacerbate racial disparity.
- Graham v. Florida, 130 S. Ct. 2011 (2010).
- Read the FOIA request at http://www.nacdl.org/predatorfoia.
- See NACDL’s report titled Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, available athttp://www.nacdl.org/reports.