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NACDL E-News

January 31, 2018; Vol. 17 No. 01

NACDL Blasts Administration’s ‘Retrograde’ Guantánamo Plan

Yesterday, the Trump Administration formally rescinded President Obama’s 2009 directive to close the detention facility at the U.S. Naval Base at Guantánamo Bay, Cuba. The practical effect of this action is that, for the foreseeable future, the military detention facility at which there remain 41 detainees, the majority of whom have never even been charged with any offense, and some of whom actually have been cleared for transfer, shall remain open. Overall, roughly 780 people have been detained at this facility since 2002. 

"For 16 years now, we have watched in horror as the conditions of detention and the sham of a criminal justice process – all at the hands of the U.S. government – have shocked the consciences of people the world over,” said NACDL President Rick Jones. “The Administration’s retrograde plan, appearing to reinvigorate the long-ago discredited enterprise at Guantánamo, is profoundly dispiriting. There’s absolutely nothing ‘Great Again’ about indefinite detention without charge and the continued pursuit of death penalty charges against people who were tortured by the U.S. government in a system that eavesdrops on attorney-client communications and systematically violates the constitutional rights of the accused. The Trump Administration should embrace the U.S. Constitution, and shut down Guantánamo immediately."

To learn more about NACDL’s extensive work in the area of national security, please visit www.nacdl.org/nationalsecurity.

NACDL "Profoundly Disappointed" by Senate's Passage of Warrantless Surveillance Legislation

On January 18, 2018, one week after the House voted to approve the legislation, the Senate passed S. 139, the Foreign Intelligence Surveillance Act (FISA) Amendments Reauthorization Act of 2017, codifying warrantless surveillance of Americans into law. The FISA Amendments Reauthorization Act of 2017 reauthorizes Section 702 of FISA, which was intended to target the communications of non-U.S. persons overseas, but often captures purely domestic communications. NACDL is deeply concerned by the passage of this Act and the associated implications on Fourth Amendment rights.

"NACDL is profoundly disappointed that the U.S. Senate joined the U.S. House of Representatives in voting to expand the surveillance power of the executive branch," said NACDL President Rick Jones. "Instead of using this moment to assess and reform this wide reaching surveillance program, bringing it in line with critical constitutional protections, Congress chose instead to broaden the impact of the program on people presently in the United States. Enactment of this bill will result in the erosion of Fourth Amendment rights. The defense bar remains as steadfast as ever in protecting people's constitutional rights and serving as a critical check on governmental overreach."

NACDL has repeatedly called for meaningful reforms of the U.S. government's vast surveillance powers. Previous statements on proposed legislation that attempted to bring Section 702 surveillance in line with constitutional protections can be found here and here.

The full text of the Senate bill is available here.

To learn more about NACDL's extensive work on the Fourth Amendment and national security, please visit https://www.nacdl.org/fourthamendment and https://www.nacdl.org/nationalsecurity.

Department of Justice Successfully Blocks Public Access to Its Federal Criminal Discovery Blue Book

On January 17, 2018, the Department of Justice (DOJ) filed notice of its decision not to appeal the release of an extremely limited portion of its Federal Criminal Discovery Blue Book. The portion of the Blue Book that the Court found was not work product was a tiny fraction – what amounts to not much more than a handful of pages – out of a manual that contains at least 265 pages.

The Court denied NACDL’s request for full disclosure because it found, as the government contended in this lawsuit, that virtually the entire manual is work product: strategic guidance for federal prosecutors on how to litigate against defense discovery requests. This is proof that the DOJ misled Congress in 2012 when it said that its Federal Criminal Discovery Blue Book, distributed in 2011 to every federal prosecutor and paralegal, “comprehensively covers the law, policy, and practice of prosecutors’ disclosure obligations.” The DOJ pointed to that manual in the context of explaining that “new rules are not necessary” as “[w]hat is necessary, and what the Department has been vigorously engaged in providing since the Stevens dismissal[,] is enhanced guidance, training, and supervision to ensure that the existing rules and policies are followed.”

The government’s misleading assertion that this manual solved the pervasive problems with non-disclosure of favorable evidence in criminal cases underscores the need for precisely the bipartisan legislation that was under consideration when these statements were made to the Senate committee.

“Make no mistake, NACDL will now redouble its efforts to seek a permanent legislative solution to the government’s persistent failures to comply with their statutory and constitutional discovery obligations,” said NACDL President Rick Jones. “The issue at stake here is no legal technicality. It is a vital protection for all persons accused of a crime by the U.S. government.”

NACDL Executive Director Norman L. Reimer observed, “If the government was not candid with Congress about what is in its instruction manual for prosecutors, how likely is it that it will be forthcoming in providing favorable evidence to the people it prosecutes?”

You can read more about the case in previous statements, available here, here, here, here, here, and here. Additional court papers, including briefs, exhibits, among others, are available at: https://www.nacdl.org/BlueBookFOIALitigation/.

More information concerning NACDL's work in the area of discovery reform is available at www.nacdl.org/discoveryreform.

Government Updates Directive on Border Searches of Digital Devices

Earlier this month, Customs and Border Protection (CBP) released a new directive on the border searches of digital devices. The new directive makes significant changes to the practices that NACDL detailed last fall in the primer “Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer.” Among those changes are specific procedures designed to protect attorney-client privilege and work product doctrine, more detail as to what procedures agents should employ to avoid searching cloud content, a “reasonable suspicion” standard for “advanced” or forensic searches of devices, as well as a dangerous new provision that asserts travels have an “obligation” to provide CBP with their device unlocked and unencrypted.

To read the updated directive, click here.

To read the full text of NACDL’s primer, click 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.

NACDL’s 2018 Election Notice
NACDL's 2018 election is underway. Individuals interested in running for officer positions or for the board of directors should consult http://www.nacdl.org/elections for deadlines and procedures.
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.
NACDL's 9th Annual Free Training for Post-Conviction Lawyers: Reinvestigating and Litigating Post-Conviction Innocence Claims

On March 22, 2018, in Memphis, Tennessee, in collaboration with the Innocence Network, NACDL presents an essential new training specifically for lawyers who handle post-conviction innocence claims. National experts will provide cutting edge instruction on reinvestigating and litigating these cases. There will be targeted sessions focused on specific issues & skills, including: digital investigation plus social media investigation tactics and ethics; investigating the police and other witnesses; recanting witnesses – specifically addressing cases with recanting experts in addition to snitches and other witnesses; investigating and litigating ineffective assistance of counsel; and the strategy and ethics of dealing with the media in innocence cases. In the afternoon, we shift to forensics, with in-depth training on time and manner of death, working with medical examiners, using experts in post-conviction hearings, and more.   

This event is the day before the 2018 Innocence Network Conference, which will be held on March 23-24 in the same venue. Separate registration is required for the Innocence Network’s national event, which brings together attorneys, the exonerated, and their families for two days of educational sessions related to innocence work. For information and registration, visit www.innocencenetwork.org/networkconference.

For more information and registration: www.nacdl.org/postconviction 

NACDL’s 2018 Champion of Public Defense Award

The Public Defense Committee is calling for nominations for the 2018 Champion of Public Defense Award. The award recognizes an individual or group for exceptional efforts in making positive changes to a local, county, state, or federal public defense system. Although the outstanding direct, individual representation of every defendant is one of NACDL’s foremost goals, this award is intended to highlight efforts toward systemic advances through legislation, litigation, or other strategies.

Nominations must include: the name, title, address, and phone number of the person/group being nominated and the person/group submitting the nomination; a summary, not to exceed two (2) single-spaced pages of the problems that existed in the relevant public defense system, the efforts made by the nominee to improve the system, the number of years the nominee has been involved in efforts to improve public defense, a brief history of the nominee’s career, and any changes that have been made in the system as a result of the nominee’s efforts.

In addition the submission may include supporting documentation such as reports, news articles, and letters of support. Nominations must be post marked or emailed by MAY 1, 2018 and sent to: NACDL Champion of Public Defense Award, Attn: Bonnie Hoffman, 1660 L Street, NW, 12th floor, Washington, D.C. 20036 or bhoffman@nacdl.org, subject line: Champion of Public Defense Award.

For more information about the Champion of Public Defense Award can be found at www.nacdl.org/publicdefense.

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

Federal Forfeiture Laws Need Reform Now! 

Attorney General Jeff Sessions recently rescinded civil asset forfeiture policy changes that his predecessor had implemented. Attorney General Holder had scaled back the Department of Justice's "Equitable Sharing" program in situations where forfeitures occurred without warrants or criminal charges. Sessions has now revived the controversial program's "adoptive seizures" policy that allows 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.

Now is the time for Congress to pass forfeiture reform! Currently pending in Congress 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!

Affinity Partners

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Office Depot/Office Max  

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Townsquare Interactive  

NACDL members receive 25% off online marketing services such as Website Design, Search Engine Optimization, Digital Display Advertising, Social Media Management, and more! NACDL members also receive a waived set-up fee. Learn more here.

In Other News

Upcoming Committee Meetings
Dates and times will be available soon.

Upcoming CLE Events
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Recent Updates to Restoration of Rights Project
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Employment Opportunities
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