Amicus Briefs Filed in 2020

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.

Gonzalez v. Immigration and Customs Enforcement

Brief of National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, University of Nevada, Las Vegas Immigration Clinic, National Association of Criminal Defense Lawyers, Washington Defender Association, Brooklyn Defender Services, Bronx Defenders, and Immigrant Defense Project as Amici Curiae in Support of Appellees and Cross-Appellants Gerardo Gonzalez, et al.

Argument: ICE’s use of immigration detainers violates the Fourth Amendment’s prohibition against arbitrary detention and its requirement that a person in government custody receive a prompt, neutral determination of probable cause for their arrest. ICE issues immigration detainers to local law enforcement without any neutral or even individualized probable cause determination, but based merely on the automated review of computerized databases that are incomplete and inaccurate. The subjects of these detainers are frequently held for at least 48 hours after they are otherwise eligible for release, even though most are not even taken into ICE custody. Those taken into ICE custody are frequently denied bond and remain in detention for additional weeks, months, or even years before an immigration judge rules on their removal proceedings, without any neutral review of probable cause supporting their arrest. ICE detainers also result in a wide range of negative collateral consequences even separate and apart from lengthy detention. Because ICE detainers have repercussions indistinguishable from criminal proceedings in which prompt, neutral review of probable cause is required, they must be subject to the same Fourth Amendment protections under Gerstein.

People v. Donthe Lucas

Brief of Amici Curiae Colorado Criminal Defense Bar and National Association of Criminal Defense Lawyers in support of Defendant-Petitioner. 

Argument: Mr. Lucas is held in a county jail without bail pending trial on a charge of first degree murder. In this original proceeding, the Colorado Supreme Court will determine whether the trial erred in denying Mr. Lucas’ motion to require the sheriff to keep professional consultation visits confidential. The Sheriff has a policy to inform the district attorney of the professional consultation visits received by Mr. Lucas. The amicus brief argues that the right to prepare a defense in secret is a necessary corollary to a defendant’s constitutional rights to due process, equal protection, and the effective assistance of counsel. When the prosecution prematurely learns the identity of consulting defense experts, the prosecution gains an unfair advantage in trial preparation, rendering the trial fundamentally unfair. The Sheriff can only provide this information when the defendant is incarcerated pretrial, denying equal protection to indigent and otherwise non-bondable defendants. An express recognition that defendants must be granted a fair opportunity to prepare their defense with sufficient secrecy to protect their pretrial strategy from disclosure is consistent with reciprocal discovery rules which require disclose of defense experts only if they will be called as trial witnesses and with the attorney work-product doctrine. Defense lawyers will also be rendered constitutionally ineffective if forced to alter strategies for consulting with experts solely because a defendant is jailed pretrial.

State v. Booker

Brief of the National Association Criminal Defense Lawyers et al. as Amici Curiae in Support of Appellant.

Argument: Tennessee’s sentencing statute for first-degree murder, which mandatorily imposes a minimum 51-year term of prison confinement on a juvenile, without consideration of the teenager’s youth and immaturity or other mitigating circumstances, violates the Cruel and Unusual Punishments Clauses and other provisions of the federal and state constitutions. In Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 460 (2016), the United States Supreme Court held that, in light of contemporary understanding of adolescent psychology and brain development, it is unconstitutional to mandatorily deprive a juvenile offender of “a meaningful opportunity to obtain release based demonstrated maturity and rehabilitation.” Because a sentence of life without the possibility of parole for 51 years exceeds the expected life-span of offenders sentenced at a young age, it does not provide young offenders with the “meaningful opportunity” for release contemplated by the Supreme Court of the United States. A majority of state court decisions from outside Tennessee have held that term-of-years sentences of over fifty years do not provide young offenders with a meaningful opportunity for release. Further, after Miller and Montgomery, numerous state legislatures have enacted juvenile sentencing and parole procedures allowing juveniles the opportunity for parole within a much shorter time period.

TCDLA, et al. v. Abbott

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff

Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond. 

United States v. Raia

Brief of Amici Curiae National Association of Criminal Defense Lawyers and FAMM in Support of Defendant/Appellee’s Petition for Rehearing and/or Rehearing En Banc.

Argument: Appellee Raia’s Petition for Rehearing addresses the discretion of a district court to excuse the 30-day waiting period for compassionate release under the First Step Act, 18 U.S.C. §3582(c)(1)(A). On April 2, 2020, the Panel declined to remand this case under Federal Rule of Appellate Procedure 12.1, stating that remand would be “futile.” In so ruling, the Panel necessarily concluded that the 30-day waiting period cannot be excused or waived. That conclusion was inconsistent with both Supreme Court and Circuit precedent. The ruling creates inconsistency in the Circuit’s treatment of all claims-processing rules, and undermines courts’ equitable authority in a wide range of cases. The30-day waiting period is a nonjurisdictional claims-processing rule. Courts may excuse noncompliance with that rule absent an express prohibition on doing so. Remand is therefore not “futile.” The Panel’s sua sponte conclusion to the contrary was error. Rehearing should be granted to correct the Panel’s error and confirm that judges are empowered to address “extraordinary and compelling” circumstances even when they arise exigently. At a minimum, the Panel should grant rehearing and order full briefing on this important issue, which was neither decided below nor fully briefed on appeal.