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May 31, 2018; Vol. 17 No. 05

NACDL’s Fourth Amendment Center Offers Direct Assistance to Defense Lawyers

NACDL’s Fourth Amendment Center now offers direct assistance to defense lawyers handling cases involving new technologies and tactics that may infringe on privacy rights of Americans. The Center’s staff is available to help members of the defense bar in bringing new Fourth Amendment challenges, providing a range of support from training and resources to expert consultation and direct litigation, all free of charge.

The Center is now available to provide litigation assistance in cases raising issues addressing new surveillance tools, technologies, and programs; including:

  • Searches & seizures of personal data held by “third-party” service providers (the “third-party doctrine”)
  • Overbroad searches & seizures of electronic devices or online accounts
  • Electronic location tracking, including cell site simulators (“Stingrays”)
  • Government hacking and use of “network investigative techniques”
  • New law enforcement technologies: predictive policing, facial recognition/biometric identification, and drone/aerial surveillance.

Defense lawyers with cases involving any of these or other issues are encouraged to contact NACDL’s Fourth Amendment Center. The Center is available to provide consultations and litigation resources as well as direct assistance in support of a defendant’s claims. Specifically, the Center may assist in motion practice, preparation for suppression hearings, as well as appellate strategy, brief writing, and oral argument. The Center also provides group trainings for defense lawyers around the country and upon request.

To request assistance or additional information, contact:

Jumana Musa, Director, Fourth Amendment Center: (202) 465-7658, jmusa@nacdl.org 

Michael Price, Senior Litigation Counsel, Fourth Amendment Center: (202) 465-7615, mprice@nacdl.org

NACDL Weighs In on Nation’s Lowest Assigned Counsel Rate; NACDL Executive Director Norman L. Reimer Argues for Significant Increase before Wisconsin Supreme Court
On May 16, 2018, the Wisconsin Supreme Court held a hearing concerning a petition filed last year by the Wisconsin Association of Criminal Defense Lawyers, the Wisconsin Association of Justice, and others, seeking to “chang[e] the hourly rate of compensation for court-appointed lawyers to $100/hour, indexing that rate to annual cost of living increases, and specifying that the payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02 for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable.” As of that date, the set rate for lawyers appointed by the courts under Wisconsin Supreme Court Rule 81.02 is currently $70 per hour, while the statutory assigned counsel rate set forth in the Wisconsin Statutes §977.08 is $40 per hour, the lowest in the nation. And it has been the same for more than 20 years.

At that May 16, 2018, hearing, NACDL Executive Director Norman L. Reimer was afforded 20 minutes of argument time during which he argued on behalf of NACDL for this increase and urged the Court to take bold action to address this crisis. He told the Court that the eyes of the nation are on Wisconsin to see how this Court addresses the problem. “The Sixth Amendment right to counsel is different from all of our other fundamental rights – it’s not self-actuating,” said Reimer. “The Sixth Amendment right is nothing if it’s not funded. It withers and it dies. And it’s withering here in Wisconsin.”

On Friday, May 18, it was reported that the Court voted to raise the hourly rate it pays for court-appointed attorneys from $70 to $100 per hour. The court’s decision does not change the $40 statutory rate that the State Public Defender can pay, however.

NACDL’s written comments are available here. And a video of the May 16 argument is available here.
Watch NACDL’s Webinar “Unknown Unknowns: How to Expose the Government’s Evidence Laundering”

On May 23, NACDL held a free webinar about the practice of government evidence laundering, known as “parallel construction.” When the U.S. government launders the origin of evidence obtained in criminal cases, it is able to obscure secret surveillance technology or potentially unconstitutional investigative methods from the accused in criminal cases. The webinar featured Brian Pori, a federal public defender from New Mexico with extensive experience leading trainings on government evidence laundering, and Sarah St. Vincent, the author of Human Rights Watch’s comprehensive investigative report “Dark Side: Secret Origins of Evidence in US Criminal Cases.”

Watch the recording of the webinar here.

NACDL's 2018 Regular and Special Election Notice

NACDL's 2018 election is underway, and the Nominating Committee has announced its slate of candidates. For the slated candidates and for information about running for officer or board petitions, please visit NACDL's Election Center.

Additionally, NACDL's Board of Directors will conduct a special election on July 29, 2018, to fill one vacancy on the board. Those interested in seeking election should consult here for deadlines, submission requirements, and other relevant information.

Register Now for NACDL's Presidential Summit and 17th Annual State Criminal Justice Network Conference from August 23 - 25 in Atlanta, Georgia

On behalf of NACDL's State Legislative Affairs Committee and the Foundation for Criminal Justice, NACDL invites you to participate in NACDL's Presidential Summit and 17th Annual State Criminal Justice Network Conference, Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity. The event will take place Thursday, August 23, through Saturday, August 25, 2018, in Atlanta, Georgia.

Learn more and register here.

Legislative Advocacy

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 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.

Federal Action Alerts

Federal Forfeiture Laws Need Reform Now! 

Attorney General Jeff Sessions has 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 

We continue to see a trend of “tough-on-crime” criminal justice bills and policies, some of which seek to add fuel to the failed War on Drugs. The latest bill following this trend is the Stop Importation and Trafficking of Synthetic Analogues Act of 2017.

H.R. 2851 would expand the 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 set criminal penalties. No Attorney General should have this power. Attorney General Jeff Sessions has consistently opposed and rolled back the Smart on Crime policies and sought to increase use of mandatory minimum drug sentences.

Help NACDL push for meaningful criminal justice reforms that will reduce the nation’s prison population and 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 of Drugs! 

Act Now to Stop ICE Agents from Making Arrests at Courthouses 

Since the onset of the new administration, we have seen an increase in Immigration and Custom Enforcement (ICE) agents making arrests at courthouses and other sensitive locations. We’ve already seen these incidences occur 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 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 Expungement 

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 urge them to support the REDEEM Act!

Take Action to "Ban the Box" 

Legislation to "Ban the Box" at the federal level was reintroduced this year. 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!

Take Action to Prevent the Expansion of the Federal Death Penalty 

Currently pending in Congress is, H.R. 115, a bill 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 his or her official duties or because of his or her status as a law enforcement officer. H.R. 115 passed the House with a vote of 271-143. It is now awaiting action in the Senate.

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

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