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February 27, 2015; Vol. 14 No. 02

Supreme Court Rules Against Prosecuting Fisherman Under Post-Enron Anti-Shredding Law; Plurality and Dissent Find Overcriminalization

On Wednesday morning, the U.S. Supreme Court issued its opinion in Yates v. United States. This case highlights the problem of overcriminalization and specifically the dangerous consequences stemming from prosecutorial expansion of the laws passed by Congress. In its opinion, the Court rejected the government's use of an overly broad interpretation of a post-Enron anti-shredding statute (18 U.S.C. §1519), a statute that provides for up to a 20-year prison sentence, to prosecute a fisherman for the disappearance of some undersized fish from his shipping vessel.

While the dissent differed in its interpretation of the anti-shredding statute's language in this case, it noted that the matter "brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code." And the dissent went on, "[s]till and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law – too broad and undifferentiated, with too-high maximum penalties, which gives prosecutors too much leverage and sentencers too much discretion." Indeed, the dissent expressly regrets that this statute is "unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code."

Link to NACDL’s complete news release, which contains links to NACDL’s brief, the opinion, and more, here.


NACDL to Host Symposium on Fourth Amendment in the Digital Age

On Friday, April 3, NACDL and the Foundation for Criminal Justice, along with the American University Washington College of Law's Criminal Practitioner Journal will hold a one-day symposium titled "The Fourth Amendment in the Digital Age.'' Scholars, policy experts, and practitioners will convene for an open discussion about how digital searches, government surveillance programs and new technologies are impacting Fourth Amendment protections in criminal cases. The event will also be recorded and live-streamed. Detailed information, including how to register and view the event's live-stream is available here.


Clemency Project 2014: A Historically Unprecedented and Wholly Independent Volunteer Effort By the Nation's Bar

Clemency Project 2014 is a working group composed of lawyers and advocates including the Federal Defenders, the American Civil Liberties UnionFamilies Against Mandatory Minimums, the American Bar Association, and the National Association of Criminal Defense Lawyers, as well as individuals active within those organizations. It launched in January 2014, after Deputy U.S. Attorney General James Cole called on the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentence if they had been sentenced today.

In less than a year, Clemency Project 2014 has organized an army of volunteer lawyers who are diligently working on behalf of thousands of prisoners who have requested free legal assistance in drafting and submitting clemency petitions. Since its conception, Clemency Project 2014 has created a training and case management infrastructure to prepare and support the diverse set of lawyers now engaged in the project.

Please join this historic opportunity to reverse the unduly harsh prison sentences that were imposed upon so many. To volunteer, please visit www.clemencyproject2014.org.


DOJ Submits Landmark Filing on Unconstitutional Bail Practices and the Indigent

On February 13, the Department of Justice filed a landmark Statement of Interest in Varden v. City of Clanton pending in the U.S. District Court in the Middle District of Alabama. In that filing, the DOJ is clear: "Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment….It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment's Equal Protection Clause, but also constitutes bad public policy." The Statement of Interest also makes clear that "[b]y using a predetermined schedule for bail amounts based solely on the charges a defendant faces, these schemes do not properly account for other important factors, such as the defendant's potential dangerousness or risk of flight." 


NACDL Praises Pennsylvania Moratorium on the Death Penalty

On February 13, Pennsylvania Governor Tom Wolf suspended the death penalty in the state. While Pennsylvania has not executed any prisoners since 1999, the state has approximately 186 people currently on death row.

Following the announcement, NACDL President Theodore Simon, who is based in Philadelphia, said: "I applaud Governor Wolf for his recognition of the death penalty’s fundamental flaws and inherent injustice. This is another important step toward the eventual elimination of a barbaric practice that has no place in a modern criminal justice system. As a Philadelphia lawyer I am particularly proud to see the Governor leading the way on this issue."


First Guantánamo Conviction Vacated; Further Evidence Military Commissions are a Failure of Justice

On February 18, a military appeals court overruled the conviction of David Hicks, the first person to be convicted of a war crime by a military commission at Guantánamo Bay, Cuba. In 2007, Mr. Hicks, an Australian, pleaded guilty to a single charge of providing material support to a terrorist organization. Mr. Hicks's conviction was overturned because the offense he was charged with was not considered a war crime at the time.

NACDL National Security Committee Chair Joshua L. Dratel, who represented Mr. Hicks at the trial level and on his habeas in federal court, said: "The result is deserved and long overdue. For more than a decade, the illegitimacy of the Guantánamo Bay military commissions has been transparent, and the reversal of David’s conviction provides more and abundant proof of that."


NACDL Introduces New Advocacy Page

NACDL has redesigned its advocacy and legislative engagement page so that it is easier to use and more beneficial to members and affiliate organizations. In addition to centralizing NACDL's ongoing legislation and advocacy campaigns, the new site features:

  • Important federal legislation being tracked
  • Key state level legislation broken down by issue area
  • Newsroom highlighting important articles of note
  • An advocacy resource center
  • A listing of elected officials and contact information
  • The ability to sign-up to receive legislative and advocacy updates from NACDL

NACDL’s advocacy and legislative engagement page can be found at www.nacdl.org/takeaction.


White Collar Criminal Defense Award from NACDL and Stetson Law to be presented to attorney Hank Asbill

On March 14, Hank Asbill, an acclaimed white collar defense attorney based in the Washington, D.C., office of Jones Day, will be presented the 2015 White Collar Criminal Defense Award at the NACDL White Collar Criminal Defense College at Stetson University College of Law in Gulfport, Florida. NACDL and Stetson Law co-present the award annually to individuals who have made a profound impact on the field of white collar criminal defense advocacy. Former NACDL President Cynthia Orr will deliver keynote remarks at the College on March 12.


Experts and Briefs Needed for Cases Involving People with Mental Disabilities

The Mental Health Committee plans to enhance the resources on NACDL's website for attorneys representing clients with mental disabilities. It is seeking names of qualified experts as well as briefs and other filings in this area. If you have an expert to recommend, please forward the name, contact information, and web address if available to Richard Jaffe (rjaffe@jaffelaw.com) and Ken Murray (kmurray@texasdefender.org). Also, please include a concise description of the expert's area (e.g., specializes in Asperger's.)  If you have a brief or other filing to submit, please send to Stephen Ross Johnson (johnson@rddjlaw.com) and Kari Reardon (kreardon@spokanecounty.org). Please include a statement that NACDL has permission to post this work.  If you have any questions, please contact Elizabeth Kelley, Mental Health Committee Chair (ZealousAdvocacy@aol.com). 


MacArthur Foundation Announces Safety and Justice Challenge

Earlier this month, the John D. and Catherine T. MacArthur Foundation unveiled an initiative aimed at addressing America's over-incarceration epidemic and reducing the number of individuals in jails. Over the course of five years, the Safety and Justice Challenge will provide a $75 million investment to support cities and counties "create fairer, more effective local justice systems." Learn more at http://www.safetyandjusticechallenge.org/.


NACDL Elects New Officer and Director in Special Election

Rock Hill, SC, attorney Christopher Wellborn was installed as NACDL treasurer at the Association's Midwinter meeting in New Orleans earlier this month. Jo Ann Palchak, whose practice is based in Tampa, FL, was elected to the Board of Directors.


NACDL Election Announcements

Special Election in April: NACDL's Board of Directors will conduct a special election at its 2015 Spring Meeting to fill one vacant position on the Board of Directors.

2015 NACDL Election: Meanwhile, NACDL's 2015 regular election is also underway. In 2015, NACDL will elect 13 members of the Board of Directors, in addition to the President-Elect, First Vice President, Second Vice President, and Secretary positions.

NACDL members interested in candidacy or the election in general should visit www.nacdl.org/elections.



NACDL State Criminal Justice Network Seeks Nominations for The Champion of State Criminal Justice Reform Award

The NACDL Champion of State Criminal Justice Reform Award recognizes an individual or group whose exceptional efforts have led toward progressive reform of a state criminal justice system. Please click here to download criteria for 2015 award. Nominations are due June 19.


New Affinity Partner Saves You $$ on Your Next Car Rental

Advantage Car Rental is now an NACDL affinity partner. NACDL members get 10% off the already low published Internet rates.

The discount has no blackout dates and is good throughout the year. When you use Advantage, NACDL receives royalties from your rental. Book a car today. Click here for more info and the discount code: http://www.nacdl.org/CostSavings/.


In Other News

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