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August 28, 2013; Vol. 12 No. 8

Further Cuts to Federal Indigent Defense

Earlier this month, the executive committee of the Administrative Office of the U.S. Courts determined that in addition to a four week deferral of payments to panel attorneys, the rates would be cut as well beginning on September 1, 2013 and continuing throughout fiscal year 2014, from $125 to $110.

In advance of that decision, NACDL coordinated and submitted a letter from NACDL and nearly 30 of our affiliates, representing significantly more than 20,000 criminal defense lawyers, to the Chief Justice and the executive committee of the Administrative Office opposing further cuts to the federal defenders or to panel rates.

Consistent with the NACDL Board resolution unanimously adopted last month at the Annual Meeting, NACDL will continue to focus its efforts to do everything possible to make the case for the full restoration of funding for indigent defense.  NACDL believes that the federal “hybrid” system of indigent defense can only fulfill its constitutional mandate if both components – federal defenders and private panel attorneys – are adequately funded and resourced.


NACDL Welcomes Attorney General Holder’s Vision for Criminal Justice Reform

In an important policy speech delivered at the Annual Meeting of the American Bar Association in San Francisco on August 12, U.S. Attorney General Eric Holder articulated a welcome vision for reforming America’s broken criminal justice system. The vision the Attorney General described in his remarks included such reform agenda items as the need to expand indigent defense programs and funding, reduce racial disparities in our criminal justice system, reform mandatory minimum sentencing regimes and charging guidelines, expand compassionate release, sensibly tackle issues related to juvenile justice and low-level, non-violent drug offenders, study and identify best practices for the use of diversion programs as alternatives to incarceration, focus on prevention and reentry issues, and eliminate the unnecessary collateral consequences of conviction.

NACDL President Jerry J. Cox said: “We look forward to learning more details from the Department of Justice concerning the vision articulated today by Attorney General Holder for a wholesale, top-to-bottom reform of the American criminal justice system. Attorney General Holder said that he expects that there will be ‘setbacks and false starts’ and that he will encounter ‘resistance and opposition.’ NACDL vows to carefully scrutinize the development and implementation of the vision articulated today by America’s chief law enforcement officer in an effort to ensure that he achieves the grand vision suggested in his remarks today to the American Bar Association. The defense bar stands prepared to help facilitate in every way this long-overdue reform to America’s broken justice system.”

Later that day, the Attorney General’s office issued a memo to U.S. attorneys and assistant general for the criminal division regarding “Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases.

To read NACDL’s complete statement, please click here.


NACDL Welcomes DOJ Effort to Ensure State and Local Compliance with Americans’ Sixth Amendment Right to Counsel

On August 14, in the case of Wilbur v. City of Mount Vernon, et al., one of a number of cases challenging systemic deficiencies in the delivery of indigent defense services across the nation, the Department of Justice, on behalf of the federal government, filed a Statement of Interest in the U.S. District Court for the Western District of Washington at Seattle. The Wilbur case concerns claims that the cities of Mount Vernon and Burlington violated misdemeanor defendants’ right to counsel. In its filing, the DOJ, while not taking a position on the merits of plaintiffs’ claims in this particular case, made very clear that “The United States has an interest in ensuring that all jurisdictions – federal, state, and local – are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon v. Wainwright, 372 U.S. 335 (1963).”

NACDL Executive Director Norman L. Reimer said: “It is gratifying to see the DOJ make its voice heard on one of the most critical issues facing the integrity of the American criminal justice system – the current crisis in indigent defense. NACDL has long supported greater DOJ involvement in ensuring state and local compliance with the Sixth Amendment right to counsel.”

To read NACDL’s complete statement, please click here.


NACDL Executive Director Speaks at “The Criminal Justice Act at 50: The Past, Present, and Future of the Right to Counsel in Federal Courts”

On August 20, NACDL Executive Director Norman Reimer spoke at “The Criminal Justice Act at 50: The Past, Present, and Future of the Right to Counsel in Federal Courts,” a special event at the Library of Congress on August 20, sponsored by the Federal Bar Association’s Criminal Law Section. In his remarks, Reimer drew attention to the latest budget cuts leveled at federal indigent defense and the ongoing difficulties indigent defenders in the states face. In his remarks, Mr. Reimer observed that “You cannot subjugate a fundamental constitutional right to budgetary bean counters – or leave it exposed and unprotected from the arbitrary political winds that swirl through this town. If you treat the defense function as a mere line item in a budget, you are shortchanging justice. And you will probably spend more money in the long run.”

The event, which was held at the Library of Congress, was aired live on C-SPAN. Other speakers at the event included David Mao, Law Librarian of Congress; Geoff Cheshire, Chair of the Federal Bar Association’s Criminal Law Section; Honorable Gustavo A. Gelpi, Jr., President-Elect, Federal Bar Association; James R. Silkenat, President, American Bar Association; Thomas Giovanni, Counsel, Brennan Center for Justice, New York University; Cait T. Clark, Assistant Director for Defender Services, Administrative Office of the U.S. Courts; and David Patton, Executive Director of the Federal Defenders of New York.

Click here to read a media alert NACDL issued in advance of the event. A complete webcast of the event is also available here.


NACDL Alarmed by Reports of NSA Surveillance Data Use and Intentional, Systematic Non-Disclosure in Domestic, Non-Terror-Related Criminal Cases

On August 5, Reuters reported that “A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.” Reuters further reported that it had undated documents that “show that federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where the information originated.”

The information reported by Reuters raises troubling questions with regard to both Fourth Amendment privacy protections and discovery law. In response to the revelations, NACDL President Jerry J. Cox said: “NACDL has long feared that overbroad national security policies would become the norm for all criminal prosecutions and today we know our concerns were not unfounded. Two months after Edward Snowden’s initial disclosures about various U.S. government surveillance activities, we know very little more about the parameters of the NSA surveillance programs. These latest reports are particularly troubling for accused persons who cannot vindicate fundamental constitutional rights without access to accurate and complete information. This puts liberty at risk of being lost without due process of law, which is an affront to the Constitution.”

To read NACDL’s complete statement, please click here.


Federal Court Findings and Repudiation of Unconstitutional “Stop-and-Frisk” Practice Underscores Extent of Racial Profiling in America’s Criminal Justice System

In a nearly 200-page opinion and order, U.S. District Court Judge Shira A. Scheindlin in the Southern District of New York ruled on August 12 in the closely-followed, class action case of Floyd v. City of New York that the City of New York “is liable for violating plaintiffs’ Fourth and Fourteenth amendment rights.” The Court further found that “[t]he City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks” and that “[e]ven if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law.” As the City “adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data[,]” the Court found the resulting “disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.” In a separate 39-page opinion and order (also accessible via the link above; it follows the first opinion and order), the Court ordered remedies, “including immediate changes to the NYPD’s policies, a joint-remedial process to consider further reforms, and the appointment of an independent monitor to oversee compliance with the remedies ordered in this case.”

NACDL President Jerry J. Cox said: “Today’s ruling is a vindication not just of the rights of all New Yorkers, but of all Americans. This opinion’s findings illustrate precisely the pervasiveness of racial profiling in America’s criminal justice system examined in great detail in a recently released report co-sponsored by NACDL, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System, a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.”

To read more, please click here.

NACDL Accepting Applications for Project Attorney Position

NACDL is currently accepting applications to immediately fill a one-year Project Attorney position that will assist in a historic collaboration between NACDL, the Innocence Project, the FBI and the Department of Justice to review cases where scientifically invalid microscopic hair comparison evidence may have led to wrongful convictions. The Project Attorney will also assist NACDL’s Resource Counsel in developing and administering support services and training for criminal practitioners in a variety of practice settings throughout the United States, with an emphasis on post-conviction innocence claims and flawed forensic evidence. Depending upon the candidate’s skill set and evolving circumstances, the position may be extended beyond one year.

More information about the position and how to apply is available here.

Group Admission to the Bar of the U.S. Supreme Court

NACDL is sponsoring a unique opportunity for up to 12 members to participate in a group admission ceremony to the Bar of the U.S. Supreme Court in Washington, D.C. This opportunity will be available to the first 12 qualified members on a first-come, first-served basis and will take place on the morning of January 13, 2014. Members will be responsible for their own travel arrangements, must be in good standing with a state bar for a minimum of three years, and must submit their completed application materials to NACDL by November 8, 2013.

Interested members should contact Elsa-Maria Ohman, NACDL’s National Affairs Assistant, at (202) 465-7638 or eohman@nacdl.org for further instructions.


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