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November 30, 2017; Vol. 16 No. 11

New Study Reveals 'Profound and Dramatic Understaffing' of Rhode Island Public Defender System

On November 16, 2017, in order to determine whether defenders in Rhode Island are facing a caseload crisis, NACDL, the American Bar Association Standing Committee on Legal Aid and Indigent Defendants (ABA SCLAID), and the accounting firm of BlumShapiro, undertook an assessment of the Rhode Island Public Defender system ("RIPD"). The findings of this study, along with the underlying data and analysis, are detailed in The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards. Based upon the data, the RIPD would require 136 full-time equivalent attorneys to provide the necessary minimum level of representation needed for the average 15,000 plus new cases assigned each year. As of July 2017, there were only 49 public defenders in the entire state.

"This collaborative study reveals a profound and dramatic understaffing of the Rhode Island Public Defender system that demands urgent and immediate attention by policymakers in that state," said NACDL President Rick Jones. "It is no secret that public defender systems across the nation are understaffed and under-resourced. NACDL will continue working tirelessly to demonstrate the contours of the crisis in order that the Sixth Amendment rights of all people in this nation are secured."

ABA President Hilarie Bass said: "The Rhode Island workload study shows once again that excessive caseloads routinely place these hard-working attorneys in jeopardy of violating their professional responsibility to provide competent counsel. When this occurs, ABA policy both requires public defenders to seek relief and encourages courts to do what is necessary to preserve the integrity of our justice system. This report not only draws attention to a national problem that threatens this nation's promise of equal justice, but it also provides guidance on how to address it."

The Rhode Island Project: A Study of the Rhode Island Public Defender System and Attorney Workload Standards is available for download here.

Read more about "The Rhode Island Project" here.

Marine Brig. Gen. John Baker Released from Confinement; Convening Authority Allows Contempt Finding to Stand

On November 3, 2017, shortly before a court proceeding in U.S. District Court before Judge Royce Lamberth challenging a contempt finding against Marine Brig. Gen. John Baker, Chief Defense Counsel for the Military, the government ordered deferment of General Baker's detention as well as his immediate release. On November 1, 2017, General Baker had been held in contempt by Military Judge Vance Spath and sentenced to 21 days confinement in his quarters and a $1,000 fine. In a November 3 court proceeding, Judge Lamberth commended the military's decision to release General Baker and agreed to afford the military commission Convening Authority, Harvey Rishikof, a reasonable opportunity to review the matter further. The Convening Authority then said it would review both General Baker's conviction and his sentence, and General Baker had 20 days to provide his comments. The Court had also asked for General Baker's counsel, Barry J. Pollack, to file a motion if a reasonable period of time passes without the Convening Authority taking further action.

On November 21, the Convening Authority issued his decision, finding that Judge Spath did in fact have the authority to hold General Baker in contempt and that the general's behavior did rise to the level of contempt. Rishikof also decided that the remainder of the sentence and the fine would not be executed.

Barry J. Pollack, NACDL's Immediate Past President and a member of the law firm Miller & Chevalier, who entered the case at the behest of NACDL's Lawyers' Assistance Strike Force, told the Miami Herald: "While we are very pleased that the Convening Authority negated the remainder of the sentence of confinement and overturned the fine that had been imposed, we think the Convening Authority was plainly wrong in concluding that the military judge had the authority to hold General Baker in contempt in the first place. The contempt finding should be reversed."

NACDL President Rick Jones stated: "The military commissions are seriously flawed. In the face of repeated instances of attorney-client privilege violations, having the temerity to punish defense lawyers for doing their job is a new low. General Baker should have his conviction vacated immediately."

As background, General Baker was held in contempt for refusing to reverse his determination that there was good cause to allow the withdrawal of three civilian members of the defense team in the case of United States v. Nashiri due to concerns that the government compromised attorney-client confidentiality and for refusing to take the stand to discuss that process. United States v. Nashiri is the trial of Abd al Rahim al Nashiri, who is the alleged mastermind of the 2000 bombing of the U.S.S. Cole.

NACDL has long been concerned about attorney-client privilege at Guantanamo, as reflected, for example, in its 2012 NACDL ethics opinion. Previous NACDL statements on Guantanamo and attorney-client communications can be found here, here, here, here, and here.

NACDL/FAMM State Clemency Project Seeking Volunteer New York Attorneys

NACDL needs experienced criminal defense attorneys to serve as Advisory Attorneys in the New York State Clemency Initiative. Advisory Attorneys will provide operational support by giving legal advice and reviewing case documents. Many volunteers working on cases are not criminal practitioners, so your experience and perspective is invaluable.

The NACDL\FAMM State Clemency Project is also seeking volunteer New York attorneys for critical state clemency work. The project, designed to help recruit, train, and provide resource support to pro bono attorneys who will assist state prisoners in submitting petitions to have their sentences commuted, has begun assigning cases in New York. The project has developed procedures to provide an initial packet of records for each applicant and to facilitate quick access to records and easy communication with applicants.

Learn more by emailing Project Manager Steven Logan at slogan@nacdl.org.

NACDL's First Amendment Strike Force and Mass Defense Unit Seeking Volunteers

NACDL has a long tradition of fighting to protect constitutional principles and standing up for the individual against the government. In keeping with that tradition, on September 19, 2017, the Foundation for Criminal Justice (FCJ) and NACDL launched the First Amendment Strike Force and Mass Defense Unit.

The goal of this project is to provide qualified counsel to represent protesters when the exercise of First Amendment rights results in arrest and prosecution. Specifically, NACDL supports a cadre of criminal defense lawyers who will be available to provide pro bono assistance to protesters throughout the country in the event of mass arrests. For those lawyers who volunteer, NACDL will maintain a database of available counsel and provide training and support at no cost.

Lawyers wishing to volunteer, please send an email to firstamendment@nacdl.org providing your bar number and indicating the state(s) in which you are admitted and are willing to provide pro bono assistance in the event of arrests related to mass protests.

Here is a link to a short podcast so that you can hear from a handful of the volunteer attorneys who are making this important project possible as they explain why it is that they are offering their time and expertise for this important effort.

To read more about the First Amendment Strike Force and Mass Defense Unit, visit here.

Charles Ogletree, Harvard Law School Jesse Climenko Professor of Law, Receives Lifetime Achievement Award from NACDL

On October 28, NACDL presented Charles Ogletree, the Harvard Law School Jesse Climenko Professor of Law and Founding Director of the Charles Hamilton Houston Institute for Race and Justice, with its Lifetime Achievement Award. The award was presented by NACDL President Rick Jones at NACDL's 2017 Fall Meeting in Boston, MA.

For more than three decades, Ogletree has lived his commitment to civil rights and to upholding the Constitution through his work as a public defender, educator, and prominent legal theorist. Ogletree is currently a professor of law at Harvard Law School, where he began his tenure in 1984. In this role, he notably mentored former President Barack Obama and taught former First Lady Michelle Obama. In 2005, Ogletree founded The Charles Hamilton Houston Institute for Race and Justice, addressing contemporary challenges in America's multi-racial society. Prior to becoming a professor at Harvard, Ogletree worked for the District of Columbia Public Defender Service, first as a staff attorney and then eventually as deputy director.

"Professor Ogletree is a role model, mentor and inspiration to generations of young lawyers," said NACDL President Rick Jones. "He certainly was that to me, both as a board member of the fledging Neighborhood Defender Service of Harlem in 1990, and later, with his pioneering work at the intersection of race and justice. I am privileged and honored to be able to present him with NACDL's Lifetime Achievement Award."

Throughout his dedicated career, Ogletree has received numerous prestigious awards and honors. In 2009, Ogletree was awarded the ABA Spirit of Excellence Award in recognition of his tireless contributions to criminal justice. He was named one of the 50 Most Influential Minority Lawyers in America by the National Law Journal in 2008. He also became the first ever recipient of the Rosa Parks Civil Rights Award presented by the city of Boston in 2006. Additionally, after serving as President for the National Black Law Students Association (NBLSA) from 1977-1978, Ogletree was inducted into the NBLSA's Hall of Fame and presented with the Lifetime Achievement Award.

Ogletree's impressive list of works includes an array of articles, books, and lectures, with a specific focus on the nexus of race and justice in America. He has written extensively on racial injustice and capital punishment, including his most recent publication co-edited with Professor Austin Sarat of Amherst College, entitled Racial Reconciliation and the Healing of a Nation: Beyond Law and Rights. In one of his most notable works — All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (W.W. Norton & Company, 2004) — Ogletree describes his personal experience growing up as a minority in the midst of the landmark Supreme Court decision.

Professor Ogletree earned both his B.A. with distinction and M.A. in political science from Stanford University. He earned his J.D. from Harvard Law School.

Past recipients of NACDL's Lifetime Achievement Award include Stephen B. Bright, Ramsey Clark, Bobby Lee Cook, Deryl Dantzler, Samuel Dash, Judge William Wayne Justice, and Michael E. Tigar. A complete list of recipients of NACDL's Lifetime Achievement Award is available here.

New Forum for Women in Criminal Defense

NACDL is pleased to introduce a new community on NACDLConnect – the Women in Criminal Defense Discussion Community. This community is open to all NACDL members as a dedicated support network and forum for addressing issues of particular concern to women in the profession, ranging from career development and practice management to the role of gender in client interactions and courtroom dynamics. The forum provides a platform to:

Communicate – Initiate and engage in dialogue with your peers around the country when you seek additional perspective and input.

Connect – Establish informal connections across the criminal defense profession.

Change – Harness the power of collective thought and action to promote meaningful change where needed to enable women defenders to thrive as powerful advocates for their clients and, where necessary, themselves.

To join the Women in Criminal Defense Discussion Community, visit NACDLConnect and adjust your subscription settings to add the community to your ongoing discussions. NACDL looks forward to hearing what you have to say and advancing the conversation about women's experience in the field of criminal defense.

If you need assistance getting started with NACDLConnect, please call Member Services at 202-872-4001.

Jessica L. Stepan Appointed Associate Executive Director for Strategic Marketing for NACDL

On November 21, 2017, NACDL announced the appointment of Jessica L. Stepan as Associate Executive Director for Strategic Marketing. In that position, Jessica will oversee the development of interdepartmental initiatives that enhance the visibility and benefits of NACDL, its programs, and its products. She will also establish and maintain a strategic plan to increase membership and enhance non-dues revenue streams.

NACDL Executive Director Norman L. Reimer said: "Jessica Stepan brings extraordinary insight and a keen understanding of the needs and concerns of a professional membership. As NACDL continues to fulfill its multifaceted mission of service to the criminal defense bar and reform of the criminal justice system, Jessica will play a pivotal role in ensuring that the Association's message of service and reform resonates across practice areas, diverse backgrounds, and encompasses defense lawyers at all levels of experience, from the recent graduate to the most seasoned."

Jessica will be relocating to Washington, DC, from Arizona, where she served as Corporate Marketing and Communication Director-Global Initiatives for AmeriFirst Financial, Inc., before which she served as the Director of Marketing for the American Association for Justice. Prior to that, Jessica was the Marketing and Communications Manager for the National Association of Realtors. Jessica earned a Bachelor of Science in mass communications at Towson University, and a Master of Arts in Global Marketing Communication and Advertising at Emerson College. She will begin her tenure at NACDL in mid-December.

Join NACDL for a Free Webinar on HIV Criminalization on December 7, 1:30pm-3:00pm ET

NACDL will host a free webinar on HIV criminalization on Thursday, December 7, 1:30pm-3:00pm ET, featuring Dr. David Wohl, Professor of Medicine at the University of North Carolina School of Medicine, and Stephen Scarborough, an Atlanta criminal defense attorney. This webinar will provide viewers with a medical primer about the current state of medicine with regard to HIV research and treatment. This primer will be coupled with a discussion on how to use medical research to develop defenses, present the court with mitigation, negotiate favorable pleas for clients, and litigate constitutional, evidentiary, and discovery issues. There will also be a section exploring the ethical issues that attorneys must grapple with when handling these cases.

NACDL Webcast: Thursday, December 7, 2017 

When: 1:30pm-3:00pm ET

Cost: FREE 

CLE credit: CLE credit is available for up to *1.5 hours of CLE where self-study credit is authorized and approved.

Learn more and register for the webinar here.

Join NACDL for a Free Webinar "Privileged Means Privileged: Keeping the Government out of Your Digital Devices at the Border" on Thursday, December 7, 11:00am-12:30pm ET

U.S. Customs and Border Protection (CBP) searches the digital devices of people at border crossings and at ports of entry without a warrant and without suspicion. Criminal defense lawyers are uniquely exposed to abuse in this context, as their devices store privileged communications and work product. This webinar will empower members of the defense community to be proactive in protecting their sensitive documents and communications when re-entering the country. The webinar will take place on Thursday, December 7, 11:00am-12:30pm ET, and will feature Esha Bhandari, a staff attorney with the ACLU Speech, Privacy, and Technology Project, who is counsel for the plaintiffs in Alasaad v. Duke, a challenge to the government's practice of conducting warrantless searches of electronic devices at the border.

Register for the webcast here and explore NACDL's primer on the subject.

Legislative Advocacy

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 Senior Manager for Advocacy, at mreid@nacdl.org.

State Legislative Tracking 

Click here for a complete listing of all legislation NACDL is currently tracking, sorted by issue area. Under each issue area you can either view legislation in select states or view all legislation. To jump to your particular state of interest, just click on the state on the map.

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 Senior Manager for Advocacy, Monica L. Reid, at mreid@nacdl.org for any advocacy question or need.

Federal Action Alerts

Tell Congress: It's Time to Support Strong Surveillance Reforms or End Warrantless Surveillance 

NACDL has long expressed concern about the U.S. government collecting and storing the electronic communications of people in the U.S. without a warrant using programs designed to capture the communications of non U.S. persons outside the country. The government uses Section 702 of the Foreign Intelligence Surveillance Act (FISA) to do just that. Senators Wyden and Paul, along with nine other Senators, introduced the USA RIGHTS Act, S. 1997. USA RIGHTS Act is a bipartisan bill to significantly reform one of the U.S. government's most invasive warrantless surveillance programs before it sunsets at the end of the year. Representatives Zoe Lofgren, D-Calif., Ted Poe, R-Texas, Rep. Beto O'Rourke, D-Texas, Rep. Justin Amash, R-Mich., Rep. Ted Lieu, D-Calif., and Rep. Thomas Massie, R-Ky., introduced companion legislation in the House of Representatives, H.R. 4124.

1997/H.R. 4124 goes a long way to bring Section 702 surveillance in line with constitutional protections. The bill would address critical failings in the way the program is currently implemented including ending "about" collection, in which the government was collecting not only the communications of the targets themselves, but also any communications that mentioned the targets. It would also largely close the "back door search" loophole that the government is using to search information collected without a warrant for subsequent use in domestic criminal cases. To address the practice of "reverse targeting," the bill would require the government to get a warrant anytime a significant purpose of targeting a foreign person is to collect the communications of a U.S. person. Finally, it addresses the critical issue of notice for the accused in criminal cases by defining "derived from" 702 surveillance as information that would have developed but for FISA evidence. The legislation would sunset in 4 years. 

Act now – tell Congress that it's time to support strong surveillance reforms or let Section 702 sunset!

House Votes to Keep Restrictions on Civil Asset Forfeiture – Act Now in Support of the FAIR Act! 

Recently, Attorney General Sessions directed federal law enforcement to increase and expand its civil asset forfeiture program, despite strong bipartisan legislative support to limit the program based on due process and fairness concerns. In response, the House of Representatives voted to maintain restrictions on the federal civil asset forfeiture program. Specifically, the House directive reinstates some restrictions that were placed on the program in recognition of due process and fairness concerns. Most notably, reinstated were restrictions on "adoptive seizures" that allow state and local law enforcement to seize assets and then transfer those assets to federal control in evasion of state laws that would otherwise have limited or prohibited the forfeitures. These restrictions have been included in the House appropriations bill, which is tabled until the current Continuing Resolution expires in December.

NACDL is continuing to put pressure on Congress to pass forfeiture reform. Currently pending is the "Fifth Amendment Integrity Restoration Act of 2017" or the "FAIR Act" (H.R. 1555/S.642). The FAIR Act would reform federal civil forfeiture law by giving property owners more protections and reducing the profit incentive to law enforcement agencies.

Ask your Members of Congress to pass the FAIR Act.

Act Now to Stop Congress from Fueling the War on Drugs – House Bill Advances from Judiciary Committee  

NACDL is continuing to see a trend of "tough-on-crime" criminal justice bills and policies, some of which seek to reignite the failed War on Drugs. The latest bill following this trend is the "Stop Importation and Trafficking of Synthetic Analogues Act of 2017" or "SITSA."

H.R. 2851/S. 1327 would expand penalties for drug offenses, add mandatory minimum sentences to the federal code, and give the Attorney General power to decide which drugs should be criminalized and to set criminal penalties. In June, Attorney General Jeff Sessions pinned an op-ed in the Washington Post to justify his policy directive rolling back the Smart on Crime policy and reinstituting the use of mandatory minimum drug sentences. In July, the House Judiciary Committee advanced H.R. 2851.

Help NACDL push for meaningful criminal justice reforms that will reduce the nation's prison population, reform sentencing structures, and push back against regressive "tough-on-crime" legislation such as this. 

Ask your members of Congress to oppose bringing back the War on Drugs!

Act Now to Stop ICE Agents from Making Arrests at Courthouses 

Since the onset of the new administration, there has been an increase in Immigration and Custom Enforcement (ICE) agents making arrests at courthouses and other sensitive locations. These incidences have already occurred in Denver, New York, Los Angeles, and other cities around the country.

Fortunately, legislation has been introduced to curb this practice – the Protecting Sensitive Locations Act (H.R. 1815 and S. 845). These bills would codify limits on immigration enforcement actions at or near sensitive locations and would expand the definition of sensitive location to include any federal, state, or local courthouse, including the office of an individual's legal counsel or representative, and a probation office (among other additional locations).

Act now to support legislation to curb this troubling practice. Ask your members of Congress to support H.R. 1815 and S. 845.

Take Action to Support Expanding Federal Expungement Eligibility  

The Record Expungement Designed to Enhance Employment Act, or the REDEEM Act, H.R. 1906/S. 827, would automatically seal and, in some cases, expunge juvenile records. It would also allow adults convicted of nonviolent crimes to petition a court to have their records sealed.

Help NACDL reduce the collateral consequences of returning citizens by contacting your Member of Congress today and urging them to support the REDEEM Act!

Take Action to "Ban the Box"

Legislation to "Ban the Box" at the federal level has been reintroduced this Congress. The Fair Chance Act, H.R. 1905/S. 842, would require the federal government and federal contractors to postpone a request for criminal history information from job applicants until the applicant has received a conditional offer of employment.

Help NACDL reduce the barriers to employment for formerly incarcerated people by contacting your Member of Congress today!

Act Now to Prevent the Expansion of the Federal Death Penalty 

Currently pending in Congress is a bill, H.R. 115, that would expand the federal death penalty statute by adding a 17th statutory aggravating factor for the killing or attempted killing of a law enforcement officer, firefighter, or other first responder who dies while engaged in the performance of their official duties or because of their status as a law enforcement officer. The House passed the measure with a vote of 271-143. It is now awaiting action in the Senate.

Contact your Senators today and urge them to oppose H.R. 115!

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