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October 31, 2018; Vol. 17 No. 10

NACDL Files Suit Demanding Records About Federal Government’s Monitoring of Emails Between Individuals in Federal Prisons and Their Attorneys

On October 18, NACDL filed suit in federal court demanding that the Federal Bureau of Prisons (BOP) and Department of Justice (DOJ) release records about their monitoring of the attorney-client communications of individuals in federal prisons as well as federal prosecutors’ use of those emails against those individuals in court.

There are more than 150,000 individuals in federal custody held in BOP facilities. To send email, these individuals must use a BOP system known as TRULINCS. This system requires them to acknowledge that their communications, including messages to or from their attorneys, will be monitored and not treated as privileged. The federal government can—and has—used emails sent between individuals in federal prisons and their attorneys against those individuals in court.

While courts have ruled that the government is barred by the Constitution from reading the legal postal mail of individuals in federal prisons, courts have not resolved this question for email, and the government has taken the position that it is entitled to read these individuals’ legal email.

In order to bring this problem to light and inform the critically important policy discussions that are called for on these issues, NACDL submitted Freedom of Information Act (FOIA) requests to the BOP and to multiple other DOJ components seeking the release of records concerning the federal government’s collection and monitoring of email communications between individuals in federal prisons and their attorneys, copies of which requests are annexed as Exhibits A and B to NACDL’s October 18, 2018, Complaint. The deadline for the agencies to respond under the FOIA has long since passed, and no requested records were produced. Accordingly, NACDL filed this federal lawsuit in the U.S. District Court for the District of Columbia.

Read more here.

NACDL and the Berkeley Center on Law and Technology (BCLT) present "It’s Complicated: Combating the Surveillance State in Criminal Proceedings"

On November 29-30, 2018, NACDL and the BCLT will co-sponsor a FREE CLE at the University of California Berkeley School of Law.

Advanced technologies are revolutionizing how the government investigates, charges, and prosecutes criminal cases. What issues do they raise under federal law and the Fourth Amendment, and how can defense lawyers keep pace? This conference will equip you with the tools to recognize and defend cases involving digital searches, advanced surveillance tools, technologies, and programs.

For more information and registration details, click here.

NACDL’s Fourth Amendment Center

NACDL’s Fourth Amendment Center now offers direct assistance to defense lawyers handling cases involving new technologies and tactics that may infringe on privacy rights of Americans. The Center’s staff is available to help members of the defense bar in bringing new Fourth Amendment challenges, providing a range of support: from training and resources to expert consultation and direct litigation, all free of charge.

Launched in April 2018, the Fourth Amendment Center seeks to build a robust legal infrastructure to challenge outdated legal doctrines that undermine privacy rights in the digital age. To this end, the Center is now available provide litigation assistance in cases raising new Fourth Amendment concerns, including:

  • Searches & seizures of personal data held by “third-party” service providers (the “third-party doctrine”);
  • Overbroad searches & seizures of electronic devices or online accounts;
  • Electronic location tracking, including cell site simulators (“Stingrays”);
  • Government hacking and use of “network investigative techniques”;
  • New law enforcement technologies: predictive policing, facial recognition and biometric identification, and drone/aerial surveillance.

Defense lawyers with cases involving any of these issues are encouraged to contact NACDL’s Fourth Amendment Center. The Center is available to provide consultations and litigation resources as well as direct assistance in support of a defendant’s Fourth Amendment claims. Specifically, the Center may assist in motion practice, preparation for suppression hearings, as well as appellate strategy, brief writing, and oral argument. The Center also provides group trainings for defense lawyers around the country and upon request.

To request assistance or additional information, contact:

  • Jumana Musa, Director, Fourth Amendment Center: (202) 465-7658, jmusa@nacdl.org 
  • Michael Price, Senior Litigation Counsel, Fourth Amendment Center: (202) 465-7615, mprice@nacdl.org.
2019 Diversity Summer Law Fellowship

NACDL is pleased to announce its 2019 Diversity Summer Law Fellowship. The goal of this program is to pair law students from historically underrepresented backgrounds with top criminal defense practitioners in both the private and public sectors from around the country. Each practitioner has agreed to provide each Fellow with a substantive opportunity to learn, grow, and witness firsthand what true advocacy looks like.

Please see below for details:

Eligible applicants: 1Ls and 2Ls from historically underrepresented backgrounds, in good academic standing, and enrolled at an ABA-accredited law school.

Educational background: Demonstrated commitment to criminal justice – e.g., coursework, extracurricular activities, pre-law school organizational involvement.

Placement: The potential host criminal defense offices are located throughout the country and will offer opportunities to learn about various stages of criminal proceedings ranging from pretrial to appeals. Applicants will be able to rank their location preferences once their application has been received.

Summer Stipend: Fellows will receive a weekly stipend of $500.00 to work for up to eight (8) weeks with selected criminal defense offices/practitioners. 

Length of Fellowship: Up to eight (8) weeks.

Deadline: Applications must be submitted by December 3, 2018, at 11:59pm. The application form and instructions can be found at www.nacdl.org/summerfellowship 

Submission Method: Please submit all documents in one PDF via email to summerfellowship@nacdl.org 

If you have any questions or comments, please contact us at summerfellowship@nacdl.org 

Time Runs Short for Wrongfully Convicted to Get Tax Relief

Under the federal Wrongful Conviction Tax Relief Act of 2015, any money received in relation to a wrongful conviction and incarceration - including lawsuit settlements and back pay - is now expressly excluded from taxable income. This new federal law (Internal Revenue Code section 139F) is also retroactive, and thereby makes refunds available to anyone who at any time paid federal income tax on wrongful compensation money. The refunds will include interest, and where the wrongfully incarcerated individual is deceased, may be claimed by that person’s estate. For more information, please see this FAQ from the IRS website.

The deadline for filing most refund claims is December 17, 2018.

The non-profit After Innocence (www.after-innocence.org) is providing free assistance to exonerees in order to determine if they are eligible for a refund under the Tax Relief Act, and if needed, connect them to pro bono accountants, tax preparers, and attorneys to help with filing a claim. Please email jon@after-innocence.org or call 415-307-3386 for more information.

Center for HIV Law and Policy Seeking Information on HIV Criminal Cases

The Center for HIV Law and Policy, a national legal resource and strategy center that coordinates a national effort to reform HIV criminal laws, is looking for cases that demonstrate the unfair application and consequences of these laws. They are particularly interested in cases from the following states: Georgia, Idaho, Illinois, Indiana, Kentucky, Montana, Nevada, Ohio, South Carolina, Tennessee, Virginia, Washington, and Wisconsin.

The ideal case would involve a defendant who is living with HIV who is not accused of actually transmitting HIV to a sexual partner.

They would be grateful if attorneys working in any of these thirteen states with clients whose active or recent cases fit within these criteria contact them by emailing Tosh Anderson, Program Manager, at tanderson@hivlawandpolicy.org, or by calling Tosh at 212-430-6733.

Bylaw Amendment
On October 27, 2018, at a regularly scheduled meeting in Savannah, Georgia, the Board of Directors voted to submit a bylaws amendment to NACDL’s membership. The amendment concerns Articles II, III, IV, V, VI, VII, and XI of NACDL’s bylaws. The complete proposed amendment and the Action Report of the Bylaws Committee are available online.
Legislative Advocacy

Compromise Reached on Final Opioid Package 

Earlier this fall, members of Congress were in the process of reconciling the differences between the House opioid package (H.R. 6) and the Senate opioid package (S. 2680). The House version contained provisions of the Stop the Importation and Trafficking of Scheduled Analogues (SITSA) Act (H.R. 2851/S. 1327), which would have expanded the penalties for drug offenses and given the Attorney General broad authority to decide which drugs should be criminalized and set criminal penalties. However, the SITSA provisions did not make it into the final opioid package.

Thank you to all who were able to contact their members of Congress on this important issue. Your efforts are crucial in helping NACDL work to bring about meaningful reforms to our nation’s criminal justice system and block efforts, such as this, to refuel the failed War on Drugs.

Advocacy Resources: What NACDL Can Do for You  

Visit NACDL's Take Action webpage for state and federal legislative updates and action alerts. You can find more advocacy information and resources in NACDL's Advocacy Resource Library. Please contact NACDL's Director of Advocacy, Monica L. Reid, at mreid@nacdl.org for any advocacy question or need.

Federal Legislative Tracking  

Click here for a complete listing of all federal legislation NACDL is currently tracking. For more information on a specific bill or to learn NACDL's position, please contact Monica Reid, NACDL's Director of Advocacy, at mreid@nacdl.org.

Affinity Partners

Introducing a new and exclusive NACDL member benefit!

NACDL has partnered with Association Health Programs (AHP) to offer NACDL members a variety of health insurance programs. AHP specializes in comprehensive health insurance programs for associations. With 30 years of experience servicing over 300 associations, AHP offers product knowledge, rate stability, and buying power.

NACDL members can access information on health insurance policies, dental and vision insurance, life insurance, disability insurance, critical illness, travel insurance, and long-term care.

Call 888-450-3040 or click here to learn more about available plans and rates. Product availability and rates vary by state and individual circumstance.

Insurance is not available for the following states: AK, HI, MA, ME, NH, NJ, NY, RI, VT, and WA. 

In Other News

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