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NACDL E-News

May 31, 2016; Vol. 15 No. 05

NACDL Election Notice
The NACDL Nominating Committee announces the 2016 nominees for officer and director positions. Petitions for candidacy will be accepted until June 23, 2016. See Election Information below or visit www.nacdl.org/elections for more information.
Clemency Project 2014 Surpasses 1,000 Submitted Clemency Petitions

In early May, Clemency Project 2014 surpassed a major milestone, submitting its 1,000th petition to the Office of the Pardon Attorney. The Project achieved this milestone on the heels of President Obama's 58 grants on May 5, 2016—the second group in fewer than six weeks to have their sentences commuted

"I could not be more proud of our volunteer lawyers for their incredible work in surpassing 1,000 submitted petitions, 120 of which have been acted upon by the Office of the Pardon Attorney," said Cynthia W. Roseberry, project manager for Clemency Project 2014. "These worthy petitions have undergone a careful, detailed review by top-notch lawyers, and each has been determined to appear to meet the criteria laid out by the Department of Justice. Cases are now moving through the review process at an unprecedented rate. I look forward to even more grants during the remainder of President Obama's term of office and have confidence in the president's declaration in late 2015 that there is no 'ceiling' on the number of commutations he will grant."

Through the Project, and with the assistance of a small paid staff and volunteer leaders of the participating organizations, these lawyers received in-depth training, screened tens of thousands of requests for assistance, engaged in often challenging factual and legal research, and ultimately, as of early May submitted more than 1,000 petitions, prepared pro bono, on behalf of non-violent federal prisoners serving draconian sentences that likely would not be imposed today given changes in law and policy.  

"To the best of my knowledge, this is the largest pro bono undertaking in the history of the American legal profession," said NACDL President E.G. "Gerry" Morris. "I could not be more proud of the bar and, in particular, the many criminal defense lawyers who stood up and volunteered to do what they can to help secure freedom for prisoners who appear to qualify under the criteria announced by the Department of Justice in April 2014. In addition to providing office space at NACDL headquarters for Clemency Project 2014, I know our staff has taken on significant additional responsibilities to support this unique and incredibly important effort. Support for an endeavor like Clemency Project 2014 is what NACDL is all about."

Gerald B. Lefcourt, President of the Foundation for Criminal Justice (FCJ), which among other groups provided critical financial resources for Clemency Project 2014, including right at the start to help get the Project off the ground, said: "This Project, and the support FCJ has provided to it, is in the greatest tradition of the mission of the Foundation, 'to preserve and promote the core values of America's justice system guaranteed by the Constitution,' including fair sentencing. For an almost entirely volunteer project like this to have been able to train thousands of lawyers, process tens of thousands of requests for pro bono assistance, track down countless archived materials, and now to surpass 1,000 petitions submitted is nothing short of monumental. It speaks volumes of the character of the legal profession."

Clemency Project 2014 has recruited and trained nearly 4,000 volunteer lawyers from diverse practice backgrounds and completed screening of over 30,000 of the more than 36,000 federal prisoners who have requested volunteer assistance.

For more information about Clemency Project 2014, please visit www.clemencyproject2014.org.

NACDL Opposes HIV Criminalization

On May 21, 2016, at the spring meeting of NACDL, the board of directors unanimously adopted a resolution opposing all laws that base criminal liability and/or penalty enhancements on one's HIV status rather than on the intent to harm another individual. Thirty-four U.S. states and territories have criminal statutes that allow prosecutions for allegations of non-disclosure, exposure and (although not required) transmission of the HIV virus. Prosecutions have occurred in at least 39 states under HIV-specific criminal laws or general criminal laws. Most of these laws treat HIV exposure as a felony, and people convicted under these laws are serving sentences as long as 30 years or more.

As set forth in NACDL's resolution, "the focus on knowledge of status as a key element of an HIV-related crime, rather than on intent and capacity to transmit the virus, is a classic example of an inadequate mens rea, or criminal intent, requirement and overly expansive criminalization."

"Laws such as these are textbook examples of flawed criminal justice policy," said NACDL President E.G. "Gerry" Morris. "Furthermore, as a public health matter, these laws operate as an impediment to what should be the shared goal here – ending the epidemic. NACDL stands with the HIV/AIDS-affected community and others in unambiguously declaring that HIV is not a crime. It should not be treated as such. Rather than irrationally deploying the criminal law to stigmatize and punish the more than 1.2 million people in the United States living with HIV, we need to work together to advance policies that encourage, rather than deter people from learning of their HIV status and seeking life-saving treatment."

NACDL's May 21, 2016 resolution is available here.

In addition, audio from a May 5, 2016 teleconference co-sponsored by NACDL, the Center for HIV Law and Policy, and the American Bar Association AIDS Committee – When Sex is a Crime and Spit is a Dangerous Weapon: A Teleconference on HIV Criminal Laws – is available here.

The Continuing Collapse of the Case for Capital Punishment

On May 23, 2016, in its 7 to 1 judgment in Foster v. Chatman (14-8349), the U.S. Supreme Court found that prosecutors violated the Constitution in the 1987 capital case against Timothy T. Foster, an African-American man accused of killing a white woman, when they struck every prospective black juror from the pool. The 1986 Supreme Court case of Batson v. Kentucky (84-6263) held that "peremptory strikes," or strikes of jury pool members without an articulated reason, are unconstitutional if race is the motive. In Foster, documents came to light decades after the trial showing that prosecutors in Mr. Foster's case had kept specific notes identifying and ranking prospective black jurors.

"What the prosecutor's office did in Mr. Foster's case rightly shocks the conscience for its blatant disregard of core constitutional protections that must be afforded to all who are accused of a crime in this country," said NACDL President E.G. "Gerry" Morris. "For nearly 30 years, Mr. Foster has served on Georgia's death row, sent there by an illegally constituted jury. It's not often that prosecutors create, and defense counsel is able to secure, demonstrable evidence of Batson violations, as here. This case serves as a powerful reminder of just one of the many ways in which the rights of the accused, and the integrity of the criminal process, can be compromised. Taken together with scores of exonerations, not to mention ghoulish and all-too-frequently grotesque execution protocols with secretly obtained lethal concoctions, it is further proof of the unacceptability of capital punishment in an advanced and civilized criminal justice system. The abolition of the death penalty is long overdue, as is abundantly clear by the continuing collapse of the case for it."

Read more here.

American Law Institute Rejects Sexual Assault Revisions Establishing Affirmative Consent Standard

Earlier this month at the 93rd Annual Meeting of the American Law Institute (ALI) in Washington, DC, a majority of the present ALI members voted to reject revisions to the Model Penal Code (MPC) with respect to sexual assault and related offenses. The proposed revisions would have established an affirmative consent guideline effectively moving the burden of proof onto the accused to prove that each party agreed to every stage of any sexual encounter. As NACDL explained in its first round of comments submitted on March 22, "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."

On May 16, 2016, NACDL also commented directly on the draft that the ALI membership rejected. The Association reiterated its complaints from its original comments, and it also specifically highlighted how "[a]doption of the affirmative consent standard is a sea change from traditional concepts of consent in American law."

NACDL Welcomes Bipartisan Legislation to Block Proposed Rule Changes Designed to Enable Sweeping Government Hacking Power

NACDL welcomed the introduction of the Stopping Mass Hacking Act (S. 2952) by Sen. Ron Wyden (D-OR), Sen. Rand Paul (R-KY), Sen. Tammy Baldwin (D-WI), Sen. Steve Daines (R-MT), and Sen. Jon Tester (D-MT) on May 19, 2016. The bill seeks to prevent changes to Rule 41 of the Federal Rules of Criminal Procedure from taking effect.

On May 25, 2016, Rep. Ted Poe (R-TX) and Judiciary Committee ranking member John Conyers (D-MI) introduced H.R. 5321, the House version of the bill. They were joined by committee members Blake Farenthold (R-TX) and Zoe Lofgren (D-CA).

The proposed changes to Rule 41 would establish broad new authority for magistrate judges to issue warrants to locate and search computers without any jurisdictional limitations. While this rule change purports to address the difficulty of being able to locate computers that use anonymizing programs, the implications are much more wide ranging. Although such warrants would still have to be supported by probable cause to believe the proposed search would uncover evidence of a crime, the language of the rule is written in a way that effectively means there is no restriction at all on issuing a warrant to locate and search a computer anywhere in the world. Just as troubling, the rule change would give the government the authority to hack into the computers of crime victims.

"This is a significant and substantive change to the law masquerading as a procedural rule change," said Peter Goldberger, Co-Chair of the NACDL's Committee on Rules of Procedure. "While it is surely possible to craft a constitutional procedure for digital searches, the rule making process is not sufficient for addressing such fundamental constitutional questions. Only a comprehensive legislative approach, crafted after full public hearings, could possibly deal with all the complex aspects of this issue."

"NACDL encourages members of Congress to support this legislation," said E.G. "Gerry" Morris, President of NACDL. "Any changes of this magnitude that impact fundamental Fourth Amendment protections should only be made with the careful consideration of Congress and should be narrowly tailored to address the underlying problem."

Read more here.

Register Now for the 15th Annual State Criminal Justice Network Conference

The Revolution Will Not be Criminalized: Inspiring a Movement for Criminal Justice Reform  

Thursday, August 11, 2016-Friday, August 12, 2016
Palm Beach, Florida

You can register here or download the PDF to fill-out and scan or fax the registration information. Early bird registration before June 17 is $125 for members and $150 for non-members. Our discounted hotel rates are unfortunately no longer available, but please visit here for alternative hotel accommodations. 

Special  

  • Champion of State Criminal Justice Reform Award Presentation
  • Conversation with former NACDL President, Gerald Lefcourt, on the Black Panther Movement of yesterday and the Black Lives Matter Movement of today 
  • Screening and discussion of state sanctioned and extrajudicial killing through a racial lens. 3 ½ Minutes, 10 Bullets 
  • Robert Blagojevich, brother of former Illinois Governor Rod Blagojevich discusses Fundraiser A: My fight for Freedom and Justice
  • Hosted Social Event for attendees

Topics include:  

  • Asset forfeiture
  • 50th Anniversary of Kent v. United States 
  • Bail Reform
  • Overcoming Collateral Consequences
  • Policing in America
NACDL Seeks Nominations for the State Criminal Justice Reform Award
NACDL's State Legislative Affairs Committee seeks nominations for their State Criminal Justice Reform Award. The award recognizes an individual or group whose exceptional efforts have led toward progressive reform of a state criminal justice system. Nominations must be received by Friday, July 1, 2016, and the award will be presented at the State Criminal Justice Network Conference on Friday, August 12, 2016 in Palm Beach, Florida.
NACDL 2016 Election Information

The NACDL Nominating Committee met on May 20, 2016, to select eligible candidates to serve in the positions listed below during the 2016-17 term. The Committee nominated the following slate of candidates for the 2016 NACDL Election.

Officer Positions 

  • President Elect: Rick Jones - New York, NY
  • First Vice President: Drew Findling - Atlanta, GA
  • Second Vice President: Nina Ginsberg - Alexandria, VA
  • Treasurer: Jerry Cox - Mt. Vernon, KY
  • Secretary: Chris Adams - Charleston, SC

Board of Directors: 

  • Jeff Adachi - San Francisco, CA
  • Andrew Birrell - Minneapolis, MN
  • Maureen Cain - Denver, CO
  • Tanya Greene - Brooklyn, NY
  • Stephen Ross Johnson - Knoxville, TN
  • Mike Klinkosum - Raleigh, NC
  • Lindsay Lewis - New York, NY
  • Norm Mueller - Denver, CO
  • Martin Sabelli - San Francisco, CA
  • Alan Silber - Roseland, NJ
  • Kristina Supler - Cleveland, OH
  • Michelle Tuegel - Waco, TX
  • CeCelia Valentine - Phoenix, AZ

Individuals interested in running for board or officer positions by petition must submit a qualified petition by 5pm Eastern Time on June 23, 2016. Nominating petitions and other information on the 2016 election is available at www.nacdl.org/elections.

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. This 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.
Request for Trial Transcripts in Forensics Cases
The Department of Justice is currently developing a framework to review FBI laboratory analyst testimony regarding pattern and impression evidence, similar to the FBI Microscopic Hair Comparison Analysis Review. In preparation for the Forensic Science Discipline Review, NACDL requests your help identifying cases that may be appropriate for review. In particular we need trial transcripts containing FBI analyst testimony in the areas of handwriting analysis, shoeprint and tire tread, fiber, glass, firearms/ballistics, serology, mineralogy, latent fingerprints, and paints in polymers. If you have any such transcripts, or know of a case containing the foregoing evidence, please contact Post-Conviction Counsel Amelia Maxfield at amaxfield@nacdl.org or (202) 465-7646.
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.
New Affinity Partners

Townsquare Interactive 

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Groupon 

NACDL members save an additional 20% on all local deals and 10% on Gateways anytime. Simply sign up to get the special NACDL promo code and custom website with deals in your area. Your participation also helps support NACDL. More>>  

RivaCare Health 

NACDL members save up to 30% on individual and group healthcare plans. Telemedicine offers the most efficient way to satisfy your healthcare needs. No copays, no waiting rooms, and 24/7 access to healthcare professionals for one low monthly fee. More>>  

In Other News

Upcoming CLE Events
View the Calendar

Recent Updates to Restoration of Rights Project
View Restoration of Rights Project

Employment Opportunities
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