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NACDL E-News

March 30, 2016; Vol. 15 No. 03

Clemency Project 2014 Applauds Commutation of 61 Federal Prison Sentences

In his first clemency grants since December of 2015, on March 30, 2016, President Barack Obama commuted the sentences of 61 prisoners, 25 of whom were applicants whose petitions were supported by Clemency Project 2014.

Cynthia W. Roseberry, project manager for Clemency Project 2014, said: "On behalf of Clemency Project 2014 and those whose sentences were commuted today, I want to sincerely thank the President for these grants. With so many people waking up each day with the hope that they too will find mercy and redemption, I hope that today's grants portend ever more grants over the remaining ten months left in President Obama's term."

"Clemency Project 2014, which was created to answer the administration's call for the legal profession to offer volunteer assistance to inmates, is grateful for every single commutation," said Norman L. Reimer, Executive Director of NACDL, a partner organization in Clemency Project 2014. "We salute the thousands of lawyers who have answered the call to service and enabled the Project to review nearly 30,000 requests and to submit nearly 600 petitions. The 61 grants today add to an increasingly impressive total, but we urge the President and his team to vastly increase the pace, and continue granting commutations on a regular basis throughout the remainder of his term."

Read more here.

Nation’s Criminal Defense Bar Comments on Proposed Revisions to Sexual Assault and Related Provisions of the Model Penal Code
Under the direction of NACDL President E.G. "Gerry" Morris, NACDL's Sex Offender Policy Committee considered the latest draft of the ALI's proposed reform of the MPC with respect to sexual assault and related offenses. On March 22, 2016, NACDL submitted its comments to the American Law Institute (ALI) regarding proposed revisions to the sexual assault provisions of the Model Penal Code (MPC). As explained in NACDL's comments: "The current draft on sexual assault and related offenses would perpetuate the disturbing tendency to dilute intent requirement in the criminal law, and would take that trend into an area of the law that carries grave and life-altering penalties. Yes means yes and no most certainly means no. But between yes and no lies the very real but vague and ambiguous concept of maybe. No person should face prosecution, conviction and imprisonment based upon a vague and ambiguous law."
NACDL and NYCDL Propose Amendments to Rule 16
Earlier this month, NACDL, together with the New York Council of Defense Lawyers (NYCDL), submitted a letter to the Advisory Committee on the Federal Rules of Criminal Procedure. NACDL and NYCDL request that the Committee consider proposing to the Judicial Conference amendments to Federal Rule of Criminal Procedure 16. The proposed amendments enclosed with the letter provide a rule-based solution to a growing problem in the defense of complex federal criminal cases nationwide. The central issue is the enormous amount of information produced by the government and received by defense counsel at the outset of the discovery process, with very little guidance as to what might be relevant to the prosecution or defense of the charges contained in the indictment. Drawing on the real experiences of their membership, the proposals submitted by NACDL and NYCDL advocate for early disclosure and other procedures in complex federal criminal cases.
NACDL Supports Ending Use of the Term "Reasonable Scientific Certainty"
On February 25, 2016, NACDL commented on the recommendations to the Attorney General regarding the use of the term "Reasonable Scientific Certainty." NACDL expresses support for the recommendations of the National Commission on Forensic Sciences which would end the use of the terms "to a reasonable degree of scientific certainty" or "to a reasonable degree of (discipline) certainty" by those employed and appearing on behalf of the Department of Justice. In the letter, NACDL argues that the reasonable scientific certainty terminology has no scientific meaning, and that the elimination of this terminology will result in more accurate courtroom testimony.
Defense Bar Submits Comments on the Proposed Amendments to the Sentencing Guidelines
NACDL commented on the U.S. Sentencing Commission’s Proposed Amendments to the Sentencing Guidelines on March 21, 2016. In its comments to the Commission, NACDL addressed amendments regarding compassionate release (§ 1B1.10), child pornography (USSG §§ 2G2.1, 2G2.2 and 2G2.6), and immigration guidelines (U.S.S.G. §§ 2L1.1 and 2L1.2).
NACDL and ACLU Support Ad Hoc Committee's Proposed Brady Disclosure Rule
On March 22, NACDL submitted comments on a proposed rule to regulate prosecutors' disclosure duties under Brady v. Maryland in the District Court for the District of Columbia. The proposed rule effectively eliminates discretion to withhold information from the defense based on a prosecutor’s subjective determination that it is not "material," and, if adopted, could serve as a model to courts around the nation.
NACDL’s Federal Rules Committee Urges Appellate Rules Committee to Extend Time for Defendant’s Notice of Appeal
In a March 28, 2016 letter, NACDL encouraged the Advisory Committee on Appellate Rules to extend the time for a defendant to file a notice of appeal in a federal criminal case from 14 days to 30 days. This longer period is the same time allowed to the government (and to parties in most civil cases) so would provide significant benefits, such as the time for defendants to acquire adequate appellate counsel, without any countervailing cost.
NACDL Strongly Encourages Virginia Governor to Veto Bill Legalizing the Electric Chair
On March 29, 2016, NACDL urged Virginia Governor Terry McAuliffe to veto HB 815, which would, if enacted, make the electric chair Virginia's default method of execution if lethal injection drugs are not available. Reinstating executions by electric chair would only be an embarrassing step backward. The widespread shift away from the electric chair reflects a broad consensus that electrocution violates the Eighth Amendment prohibition against cruel and unusual punishment, and given Virginia's history of botched executions by electric chair, signing HB 815 would be a mistake.
Overcriminalization Law & Policy Symposium on May 26, 2016
NACDL and the U.S. Chamber Institute for Legal Reform will co-host a joint Law & Policy Symposium on Thursday, May 26, 2016 at the U.S. Chamber of Commerce headquarters in Washington, DC. There is no cost to attend this full day program. The Symposium—The Enforcement Maze: Over-Criminalizing American Enterprise—will address the rise of overcriminalization, the inappropriate criminalization of what are truly civil or regulatory/administrative problems, and the pressures associated with enforcement against businesses and corporate individuals. Jim Cole, former Deputy Attorney General of the United States, will provide the keynote address. For the full agenda, click here. To register for this free program, click here.
NACDL Press to Publish "The Feminine Sixth: Women for the Defense," by Leading Defense Attorney and Legal Scholar Andrea D. Lyon

On March 28, 2016, NACDL announced that its publishing unit, NACDL Press, will be publishing a groundbreaking work on women in criminal defense by leading criminal defense attorney, legal scholar, Dean and Professor of Law at Valparaiso University School of Law, and decades-long NACDL member Andrea D. Lyon. The book is expected to be released in 2017 and will be titled The Feminine Sixth: Women for the Defense. In this work, Ms. Lyon will tell the stories of women lawyers who are in criminal defense—public and private—who are not necessarily on the speakers' circuit or otherwise well known.

"This book tells the stories of some extraordinary women that you likely do not know," Ms. Lyon said. "They have all been or are still criminal defense lawyers. They have all had differing experience doing this work, figuring out how to live their lives while doing it, and being aware of how their gender affected or still affects those choices and styles. The Sixth Amendment guarantees those charged with crimes the right to effective assistance of counsel. The only lawyers recognized by the constitution are us. These are the stories of that part of that constitutional mandate that are women (a relatively new occurrence); the feminine Sixth."

NACDL Executive Director Norman L. Reimer said: "Andrea Lyon brings a level of criminal defense experience that is extraordinary for its depth and breadth. Her unique perspective on the growing role of women in the profession will not only provide an important and unique window into the American criminal justice system and an evolving society, but will also serve as an inspiration for all current and aspiring criminal defense lawyers, regardless of gender or background. This book will provide a fascinating look at one of the most crucial aspects of the legal profession and promises to inspire and influence future generation of lawyers. NACDL is proud to be a part of this most important project."

Read more here.

NACDL Establishes Internship in Memory of Tiffany May Joslyn

On March 8, 2016, NACDL announced the establishment of the Tiffany May Joslyn White Collar Crime Policy Internship. This internship will afford a law student interested in the area of white-collar crime and policy with the opportunity to work directly with and learn firsthand from leaders in the field at NACDL.

Application information will be forthcoming.

Read more here.

Spread the Word about The Right to Counsel National Campaign
NACDL is a proud consortium and steering committee member of the Right to Counsel National Campaign. The Bureau of Justice Assistance-led initiative is spearheaded by a consortium of national, state, and local criminal justice stakeholders, community advocates, and policymakers who are committed to ensuring the fulfillment of the Sixth Amendment right to counsel and the effective delivery of public defense services. To learn more and spread the word on the importance of public defense, like the campaign on Facebook and follow it on Twitter. And you can join the conversation by using the hashtag #right2counsel.
Legislation Introduced to Eliminate Provision Denying Financial Aid to Students with Drug-Related Offenses
S. 2557, the "Stopping Unfair Collateral Consequences from Ending Student Success Act" or "SUCCESS Act" would amend the provision Higher Education Act of 1965 that currently denies financial aid for those with minor drug offenses and would also prohibit the Secretary of Education from including any question regarding drug related convictions on the Free Application for Federal Student Aid (FAFSA) form. A House bill currently pending, H.R. 4004, would also repeal the aid elimination penalty. Since 2000, more than 200,000 students have been denied financial aid due to this policy. In NACDL's 2014 report, Collateral Damage, we discuss the need for the nation to "come to grips with the insurmountable barriers faced by people with criminal records and how these barriers actually hurt public safety." The aid elimination penalty is an example of such counterproductive policies. Prohibiting access to financial aid and, as a result, access to higher education can adversely impact the ability to earn a living, which is essential for reducing recidivism.
Federal Public Defense Legislation
Rep. Ted Deutch (D-FL) has introduced H.R. 4606, the "Status of the Sixth Amendment Act of 2016," which would require states to report on the number of defendants appearing in felony cases, misdemeanor cases, and juvenile delinquency proceedings without representation by counsel. Deutch has also previously introduced H.R. 2063 and H.R. 2955, which would establish a National Center for the Right to Counsel and authorize the Justice Department to challenge systemic Sixth Amendment violations. Also introduced was the "Justice for All Reauthorization Act of 2016," (H.R. 4602/S. 2577) which would, among other things, require the Department of Justice to assist states in developing a proficient indigent defense system. Additionally, supporters of the John R. Justice prosecutor and defender student loan repayment program are gathering support among their House and Senate colleagues to ensure that funding for the program is continued in FY 2017. 
Take Action: President Obama has “Banned the Box” – Tell Congress to do the same!

NACDL was one of many organizations and individuals who sent a letter to President Obama urging him to take executive action to "Ban the Box" in federal employment hiring practices. In November, he did just that! President Obama announced a number of re-entry measures for formerly incarcerated individuals, including directing the Office of Personal Management (OPM) to take action to "Ban the Box" in federal employment hiring practices, delaying inquiries into criminal history until later in the hiring process. The Senate Committee on Homeland Security and Government Affairs reported S. 2021, the Fair Chance to Compete for Jobs Act of 2015, favorably from the committee. This legislation would go a step further by requiring federal contractors to "Ban the Box" as well. NACDL signed onto the coalition letter in support of S. 2021.

Contact your senator today and urge them to support S. 2021! 

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 Grassroots Advocacy Manager, at mreid@nacdl.org.
NACDL 2016 Election Notice
NACDL's 2016 election is underway. Individuals interested in running for officer positions or for the board of directors should consult www.nacdl.org/elections for information on deadlines and procedures.
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