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NACDL E-News

December 21, 2017; Vol. 16 No. 12

Groundbreaking New Conference Report: Judicial Responsibility for Justice in Criminal Courts

On April 6 and 7, 2017, NACDL, the Foundation for Criminal Justice, the Monroe Freedman Institute for the Study of Legal Ethics at Hofstra University's Maurice A. Deane School of Law, the Association of Prosecuting Attorneys, the Center for Court Innovation, and the State of New York Unified Court System convened a conference designed to explore the impediments to and reforms needed to ensure effective justice in all stages of the criminal process, with a particular focus on the judicial role in high-volume misdemeanor courts. The conference took place at Hofstra University in Hempstead, New York. The conference assembled judges, prosecutors, defense attorneys, scholars, and criminal justice policy experts to identify practical reforms to improve the quality of justice in state and local criminal justice systems.

This report – Judicial Responsibility for Justice in Criminal Courts – shares discussions and recommendations that emerged from the conference's presentations, panels, and work groups. Conference participants generated many proposals for specific reforms that judges can implement to improve the delivery of justice in misdemeanor courts.

"NACDL has long been committed to working with all stakeholders in the criminal justice system in order to ensure the protection of the constitutional rights of all persons accused of criminal wrongdoing in our nation's courts," said NACDL President Rick Jones. "This unique and groundbreaking conference and critically important conference report represent exactly the type of collaboration among stakeholders that can have tangible, meaningful, and lasting effects that will improve the quality of justice in the nation's criminal courts."

"We all understand that the crisis in our misdemeanor courts stems from many factors: lack of adequate funding, over-prosecution, overcriminalization, and over-reliance on bail, fees, and fines," said NACDL Executive Director Norman L. Reimer. "Until now, most reform efforts have focused on law enforcement, prosecutors, and defense lawyers. But we have overlooked the critical role judges can play in addressing this crisis. This report shows how the judiciary can be the catalysts for reform. This report offers a roadmap for that role."

"We are optimistic that this groundbreaking conference will set the stage for similar conferences around the nation," said Professor Ellen Yaroshefsky, Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director, Monroe H. Freedman Institute for the Study of Legal Ethics, Maurice A. Deane School of Law at Hofstra University. "And we hope that this report will help begin a national conversation about the issues and specific recommendations in the report to improve the quality of justice delivered by judges, even in overburdened and underfunded state and local criminal justice systems."

This report was prepared by Professor Andrea M. Marsh, Lecturer at the University of Texas School of Law.

This project was supported by a grant from the Bureau of Justice Assistance. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

The report is available here.

NACDL/FAMM State Clemency Project Seeking Volunteer New York Attorneys

The NACDL/FAMM State Clemency Project is seeking volunteer New York attorneys for 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.

NACDL is also seeking experienced criminal defense attorneys to serve as Advisory Attorneys in the New York State Clemency Initiative, part of the NACDL/FAMM State Clemency Project. Advisory Attorneys will provide operational support to the project by giving legal advice and reviewing case documents. Many volunteer attorneys working on cases are not criminal practitioners, so the experience and perspectives of Advising Attorneys are invaluable.

To learn more, email 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.

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.

Sign Up to Receive the Daily Criminal Justice Briefing!
The Daily Criminal Justice Briefing compiles the most important criminal justice stories from around the country and the world from major journals and media outlets affecting the criminal defense profession. This exclusive NACDL member benefit is prepared and issued by NACDL's Public Affairs and Communications team six days a week. To sign up, subscribe to the "Daily Criminal Justice Briefing Community" in your NACDLConnect Account.
Watch NACDL's Free Webinar "Privileged Means Privileged: Keeping the Government Out of Your Digital Devices at the Border"

On December 7, NACDL held a free webinar that empowered members of the defense community to be proactive in protecting their sensitive documents and communications when re-entering the country. U.S. Customs and Border Protection 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. The webinar featured 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.

Watch the webinar here and explore NACDL's primer on the subject here.

Watch NACDL’s Free Webinar on HIV Criminalization

On December 7, NACDL held a free webinar featuring Dr. David Wohl, Professor of Medicine at the University of North Carolina School of Medicine, and Stephen Scarborough, an Atlanta criminal defense attorney. The webinar provided viewers with a medical primer about the current state of medicine with regard to HIV research and treatment. Presenters addressed 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 was also a section exploring the ethical issues that attorneys must grapple with when handling these cases.

Watch the webinar here.

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  

In preparation for the 2018 legislative sessions, NACDL will be tracking two additional criminal justice issues – legislation that seeks to criminalize acts of protest ("Protest") and legislation that seeks to criminalize recording law enforcement officers in public ("Sousveillance").

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

Urge Congress to Support Surveillance Reforms or Let Warrantless Surveillance Program Sunset! 

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. The government uses Section 702 of the Foreign Intelligence Surveillance Act (FISA), a program designed to collect the information of non-US persons who are outside the country, to do just that. Members of the House and Senate have introduced a number of bills to reauthorize Section 702, as it is scheduled to sunset at the end of the year.

The bills most likely to be voted on do not fix the constitutional problems of Section 702. Most significantly, they do not close the backdoor search loophole, which allows the government to search information collected without a warrant under Section 702 for use in domestic criminal investigations, including those completely unrelated to terrorism or national security. If these proposals are not changed, Congress will reauthorize Section 702 without addressing the surveillance program’s unconstitutional overreach.

Two reform bills, the USA Liberty Act and the USA RIGHTS Act, take steps to close the backdoor search loophole. If Congress cannot establish clear restrictions on the gathering and use of Section 702 data, Section 702 should be allowed to expire.

Act now – tell Congress to close the backdoor search loophole or let Section 702 expire!

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 DenverNew YorkLos 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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