NACDL - National Association of Criminal Defense Lawyers

Chairman Biggs, Ranking Member McBath, and distinguished members of this Subcommittee, thank you for holding this hearing on the topic of overcriminalization. As you know, the National Association of Criminal Defense Lawyers has been working on this issue for over a decade and its work was instrumental in inspiring one of the earliest hearings on this issue, held by this Subcommittee, in 2010 on a bipartisan basis, as well as the full Judiciary Committee’s formation of the bipartisan Over-Criminalization Task Force a few years later in 2013.

NACDL, with its diverse membership of 10,000 spanning state, federal, and military practice, wishes to express its views on preferred Commission priorities. We concur with other advocates and stakeholders that current sentences are excessively long, and certain sentencing factors disproportionately affect racial minorities within the criminal legal system. Whatever issues the Commission determines to prioritize, these flaws should be foremost in considering potential amendments.

1:24-cv-01656 (D.D.C.)

The American Civil Liberties Union (ACLU) and NACDL filed a lawsuit under the Freedom of Information Act (FOIA) seeking public records detailing the Department of Justice’s implementation of December 2022 memoranda establishing new policies for all federal prosecutors’ charging and sentencing practices.

The problem of overcriminalization is multifaceted, with many aspects that pervade our criminal legal system, including the criminalization of conduct that is not harmful to society or others; criminal statutes that lack adequate mens rea, or intent, requirements; ambiguous and vague language in criminal statutes that provide insufficient notice and insufficient limitation on what conduct is criminalized; and the imposition of vicarious liability with insufficient requirement that the charged person was involved in, or even knew about, the underlying conduct.

The National Association of Defense Lawyers (NACDL) respectfully submits the following comments on these important proposed amendments.

The undersigned groups are pleased to see that the U.S. Sentencing Commission has made the comparing of sentences imposed in cases disposed of through trial versus plea one of its priorities for the amendment cycle ending May 1, 2024. As groups with significant experience examining the trial versus plea sentencing disparity, we respectfully request a meeting with Commissioners or staff or both who are working on this important issue.

The undersigned groups urge you to oppose the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2023 (S. 412), which would create a new federal crime carrying a one-to-five-year prison sentence for sharing intimate photos of a person without that person’s consent. We recognize that this bill is well intentioned, but we are concerned that it will sweep in and criminalize innocent conduct and worsen the trial penalty that many criminal defendants—including many people who are actually innocent—face in our justice system.

The National Association of Defense Lawyers (NACDL) respectfully submits the following comments on the Commission’s possible policy priorities for the amendment cycle ending May 1, 2024.

NACDL is pleased to see the U.S. Sentencing Commission proposing amendments the Sentencing Guidelines that seek to address the unfair practice of allowing acquitted conduct to be considered as relevant conduct under Sentencing Guideline Section 1B1.3.

We write to propose a category of individuals who are deserving of clemency. Specifically, we respectfully request that you consider clemency for (1) individuals who suffered severe sentences as a consequence of having exercised their Sixth Amendment right to trial rather than having pleaded guilty and (2) individuals who accepted severe plea bargains under threat of substantially greater post-trial sentences. These scenarios—routine in our criminal justice system—illustrate a profound constitutional and human injustice: the “trial penalty”…

Comments with FAMM to Deputy Attorney General Lisa Monaco regarding U.S. Attorney offices requiring waiver of the right to seek compassionate release during plea negotiations.

NACDL President Chris Adams' letter to the New York state legislature regarding proposals to truly implement review of excessive sentences, suppression rulings, and streamlining the assignment of counsel in appeals as outlined in A5687/S1280, A5688/S1281, and A5689/S1279, respectively (2021).

Letter to the House Judiciary Committee regarding penalties and prosecutorial requirements for revenge porn cases, as proposed in the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2019 (H.R. 2896).

Letter to the U.S. Sentencing Commission regarding USSC priorities in the current (2019) amendment cycle.

Comments to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding a proposed amendment to Rule 11 of the Federal Rules of Criminal Procedure.

NACDL President Cynthia Hujar Orr’s written statement to the U.S. Sentencing Commission regarding mandatory minimum sentencing in federal law and the value of case-specific discretion.

Opposition to the Purchase of the Thomson Correctional Center in Thomson, Illinois — Unless Congress Also Enacts a Permanent, Statutory Ban on Using the Thomson Prison for Indefinitely Detaining Persons Without Charge or Trial, or for Holding Persons During Military Commission Trials or for Serving Sentences Imposed by Military Commissions

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure, except those related to criminal forfeiture.