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NACDL E-News

July 31, 2018; Vol. 17 No. 07

NACDL Releases Groundbreaking Report, Principles, and Recommendations Concerning the ‘Trial Penalty’ and the Decline of the Constitution’s Sixth Amendment Right to Trial

At a special event at the National Press Club on July 10, NACDL released The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The ‘trial penalty’ refers to the substantial difference between the charges and sentence offered as part of plea negotiations prior to trial versus the charges faced and sentence received by a defendant after trial. This penalty has grown so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must often surrender many other fundamental rights which are essential to a fair justice system, such as access to discovery and exculpatory evidence, pursuit of constitutional challenges to evidence and statutes, and even the time to have his or her counsel conduct meaningful investigation of the charges. Of course, access to effective assistance of counsel is critical to combatting this encroachment on the Sixth Amendment right to trial. The Trial Penalty report has garnered support from a broad range of leading criminal justice reform entities, all of which agree that the incursion on the right to a trial poses a clear threat to justice.

The keynote speaker at the July 10 event was former U.S. Federal Judge John Gleeson (E.D.N.Y.). In addition to NACDL leadership, including NACDL Immediate Past President Rick Jones, NACDL Past President Barry Pollack, and NACDL Executive Director Norman L. Reimer, representatives from numerous leading groups in the criminal justice reform movement from across the political spectrum agree that the trial penalty in the American criminal justice system is a serious problem that needs to be addressed. Those groups included the Cato Institute, Human Rights Watch, Right on Crime, Texas Public Policy Foundation, Families Against Mandatory Minimums, the ACLU, the Charles Koch Institute, the Innocence Project, and Fair Trials International. Pro Bono Counsel Don Salzman from the firm of Skadden, Arps, Slate, Meagher & Flom LLP also spoke, as did New York criminal defense attorney Frederick P. Hafetz. A link to a video recording of the event will be available in the coming days at www.nacdl.org/trialpenaltyreport.

As the release of this report is a beginning point for tackling the dramatic encroachment upon the Constitution’s Sixth Amendment right to trial, NACDL is seeking to learn about more individual encounters with the trial penalty in the American criminal justice system, whether on the federal or state level. If you are interested in sharing a trial penalty story, please use this link to take a short survey:

https://www.surveymonkey.com/r/TrialPenalty.

Read more here.

NACDL’s President’s Summit and 17th Annual State Criminal Justice Network Conference, August 23-25, 2018
On behalf of NACDL, NACDL’s State Legislative Affairs Committee, and the NACDL Foundation for Criminal Justice, NACDL invites you to participate in NACDL’s Presidential Summit held in conjunction with the 17th Annual State Criminal Justice Network Conference, Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity, Thursday, August 23 – Friday, August 24, 2018 at the Marriott Marquis in Atlanta, Georgia and Saturday, August 25, at the historic Ebenezer Baptist Church, the spiritual home of the Reverend Martin Luther King, Jr. You can find more information about the Summit here. For scholarship inquiries, please contact Angelyn at afrazer-giles@nacdl.org. The event will celebrate bi-partisan efforts to break the barriers faced by those with criminal records. Speakers include former DAG Sally Yates and Gov. Nelson Deal. Comedian and actor Mike Epps will participate as the event’s honorary chair.
Atlanta, GA, Lawyer Drew Findling Sworn In As NACDL President; Receives Prestigious 2018 Heeney Award

Drew Findling of Atlanta, GA, was sworn in as NACDL President at the Association's Annual Meeting in Miami Beach, FL, on July 29. In addition, Findling was chosen as the 2018 recipient of NACDL’s Robert C. Heeney Memorial Award. This highly prestigious honor is presented annually to the NACDL member who best demonstrates the goals and values of the Association and of the legal profession.

A Life Member of NACDL, Findling joined the Association in 1988 and has served multiple terms on the Board of Directors. His commitment includes service as chair of multiple committees related to forensic science, chair of the Membership Committee, and as co-chair of the Discovery Reform Committee. He also served as a member of NACDL’s Nominating Committee and National Forensics Litigation College Advisory Board.

“Drew Findling’s entire life has been about service and the defense of people against whom the deck is clearly stacked, people who quite literally are oppressed by our criminal justice system,” said NACDL Immediate Past President Rick Jones, who presented Findling with NACDL’s Heeney Award. “Drew’s dedication to each and every one of his clients is evident to all who have worked with him. He is as committed to the unique, Constitutionally-ordained role of the criminal defense lawyer as anyone I have ever known. Drew truly embodies the very best of what our profession aspires to be.”

After receiving the Heeney Award, Findling was sworn in as President of the Association by Vernon S. Pitts, Jr., Director of the Fulton County Public Defender Office, who hired Findling as a public defender 33 years ago at the start of his career.

Upon being sworn in as NACDL President, Findling said: “I will not be able to sleep at night if during the next twelve months I do nothing to lessen the impact of collateral consequences for the men and women who have been arrested, prosecuted and/or convicted of a crime; especially those who have been sentenced to prison. I will only be able to sleep better at night after I know I have done something to ease their transition back to society, by helping to restore their right to vote, enhance their opportunity to get jobs that pay living wages, and overall reestablish themselves as citizens whose past misdeeds have truly been forgiven and forgotten.”

Read more here.

2018-19 Officers and Newly Elected Members of the NACDL Board of Directors Sworn in at Annual Meeting

NACDL installed newly elected officers and directors at its Annual Board and Membership Meeting in Miami Beach, FL, on July 29.

NACDL's newly elected officers and directors:

Executive Committee 

President: Drew Findling (Atlanta, GA)
President Elect: Nina J. Ginsberg (Alexandria, VA)
First Vice President: Chris Adams (Charleston, SC)
Second Vice President: Martín Sabelli (San Francisco, CA)
Secretary: Nellie King (West Palm Beach, FL)

In addition, Andrew S. Birrell (Minneapolis, MN) will serve as Treasurer.

Board of Directors 

John Arrascada (Reno, NV)
Charles Atwell (Kansas City, MO)
Benjamin Au (San Francisco, CA)
Robert Butler (Bellingham, WA) (Affiliate Representative)
Jonathan Brayman (Chicago, IL) (Affiliate Representative)
Kobie Flowers (Washington, DC)
Daniella Gordon (Marlton, NJ)
Huda Ajlani Macri (Fort Lauderdale, FL)
Shazzie Naseem (Kansas City, MO)
C. Melissa Owen (Charlotte, NC)
Robert Patillo (Atlanta, GA)
Sonya Pfeiffer (Charlotte, NC)
Gabriel Reyes (Dallas, TX)
Addy R. Schmitt (Washington, DC)
Tony Thedford (Chicago, IL)
Ian Wallach (Los Angeles, CA)

Brian H. Bieber (Miami, FL) was appointed Parliamentarian by NACDL President Drew Findling at the July 29th meeting of the Board of Directors. Directors Charles Atwell (Kansas City, MO) and Timothy McCarthy (West Des Moines, IA) were selected to serve on NACDL's Executive Committee.

Rock Hill, SC, Attorney Christopher A. Wellborn Receives Champion of Justice Award from Nation’s Criminal Defense Bar

Attorney Christopher A. Wellborn of Rock Hill, SC, received the Champion of Justice Legal Award from NACDL at the Association's Annual Meeting in Miami Beach, FL, on July 29.

“Chris Wellborn is a true and dedicated soldier for the criminal defense function and the mission of this great Association,” said NACDL Immediate Past President Rick Jones, who presented Wellborn with NACDL’s Champion of Justice Award. “The epitome of an unsung hero, Chris Wellborn has for many years served in multiple leadership roles at NACDL, expertly advancing the promise of the U.S. Constitution and the cause of criminal justice reform in this nation.”

Wellborn, a life member of NACDL, joined in 1994 and has participated on the Board of Directors since 2010. He served as NACDL Treasurer from 2015 to 2016 and as Parliamentarian from 2017 to 2018. Wellborn is the current co-chair of NACDL’s Sousveillance Task Force. He also currently serves on the Membership, Mental Health, and Corrections Committees, and is a member of the Task Force on Restoration of Rights and Status after Conviction. He previously served as chair of the Budget Committee and as a member on the Long Range Planning and Public Defense Committees. Wellborn is also a founding member, past president, and board member of the South Carolina Association of Criminal Defense Lawyers. He is also a Past President of the York County Bar Association, and has served as Chair of the Criminal Law Section of the South Carolina Bar Association.

Read more here.  

NACDL Disappointed with Tennessee Supreme Court Rate Increase

On July 1, the Tennessee Supreme Court implemented an amendment to Court Rule 13, which sets the compensation rates and fee caps for assigned counsel in the state. The amendment raised the rate for out-of-court work from $40 per hour to $50 per hour, the same rate appointed counsel currently receive for their in-court hours. This would still leave Tennessee with rates among the lowest in the nation.

NACDL, along with the Tennessee Association of Criminal Defense Lawyers (TACDL), submitted detailed comments to the court on June 25th, encouraging the Court to adopt such amendments to Rule 13 as necessary to assure all those represented by public defense attorneys have counsel who are sufficiently resourced, supported, and trained. The amendments proposed and adopted by the Court provide only minimal cosmetic changes to the compensation system currently in place.

Read more here.

Limited Assigned Counsel Rate Ruling by Wisconsin Supreme Court Ensures Wisconsin’s Public Defense System to Remain in Crisis 'Indefinitely’

On June 27, 2018, the Wisconsin Supreme Court issued its formal order in the matter of the petition filed by the Wisconsin Association of Criminal Defense Lawyers (WACDL), 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."

By that order, the set rate for lawyers appointed by the courts under Wisconsin Supreme Court Rule 81.02 will remain $70 per hour until 2020. Beginning in 2020, it will be $100, but only as respects appointments made by the courts. The court declined to rule that the statutory rate of $40 per hour for state public defender appointments is unreasonable. In addition, the Court declined to ban flat fee contracts. Instead, the Court deferred on these matters to a legislature that has refused to raise that rate in decades.

As revealed in a March 2013 NACDL report – Gideon at 50, Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems – Wisconsin has long had the lowest statutory assigned counsel rate in the nation at $40 per hour. That is the rate paid to court-assigned counsel to represent criminally accused persons in Wisconsin who cannot afford a lawyer. This rate is set forth in the Wisconsin Statutes §977.08 and has been the same for more than 20 years.

NACDL submitted detailed comments to the court on May 2, 2018, and NACDL Executive Director Norman L. Reimer argued before the Court at its May 16, 2018 hearing.

Video of the May 16, 2018, hearing is available here. In addition, all pleadings and submissions in this matter before the Wisconsin Supreme Court are available at https://www.wicourts.gov/scrules/1706.htm

Read more here.

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, the NACDL Foundation for Criminal Justice 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 maintains a database of available counsel and provides training and support at no cost, available here.

While the charges brought to date against most protesters are often relatively minor misdemeanors, the consequences of a criminal record have never been greater in American society. People who are charged with criminal offenses while standing up for their principles should receive vigorous representation.

Lawyers wishing to volunteer should 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. NACDL membership is not required to participate.

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.

NACDL’s Fourth Amendment Center

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.

Launched in April 2018, the Fourth Amendment Center seeks to build a robust legal infrastructure to challenge outdated legal doctrines that undermine privacy rights in the digital age. To this end, the Center is now available to provide litigation assistance in cases raising new Fourth Amendment concerns, 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 and biometric identification, and drone/aerial surveillance.

Defense lawyers with cases involving any of these 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 Fourth Amendment 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.
Center for HIV Law and Policy Seeking Information on HIV Criminal Cases

The Center for HIV Law and Policy, a national legal resource and strategy center that coordinates a national effort to reform HIV criminal laws, is looking for cases that demonstrate the unfair application and consequences of these laws. They are particularly interested in cases from the following states: Georgia, Idaho, Illinois, Indiana, Kentucky, Montana, Nevada, Ohio, South Carolina, Tennessee, Virginia, Washington, and Wisconsin.

The ideal case would involve a defendant who is living with HIV who is not accused of actually transmitting HIV to a sexual partner.

They would be grateful if attorneys working in any of these thirteen states with clients whose active or recent cases fit within these criteria contact them by emailing Tosh Anderson, Program Manager, at tanderson@hivlawandpolicy.org, or by calling Tosh at 212-430-6733.

Group Admission to the Bar of the U.S. Supreme Court

NACDL is once again pleased to sponsor an opportunity for up to 12 members to participate in a group admission ceremony to the Bar of the U.S. Supreme Court in Washington, D.C. Participation in this ceremony, in which admittees are administered the oath of admission by the Chief Justice of the United States in the well of the Supreme Court, will be available to the first 12 qualified members on a first-come, first-served basis and will take place on the morning of January 8, 2019. Members will be responsible for their own travel arrangements, must be in good standing with a state bar for a minimum of three years, and must submit their completed application materials to NACDL by October 31, 2018.

Interested members should contact Shuli Carroll, NACDL’s National Affairs Assistant, at (202) 465-7638 or scarroll@nacdl.org, for further instructions.

Special Election Update
NACDL’s board of directors will conduct a special board election at its fall meeting. For details about the election and about candidacy, please see www.nacdl.org/elections.
Legislation Introduced to Provide Relief for Juveniles Serving Life Without Parole Sentences in the Federal System
Last month, Congressman Bruce Westerman of Arizona introduced H.R. 6011, which would allow youth sentenced to more than 20 years in prison for crimes committed before their eighteenth birthday to petition the original sentencing court for review of their sentence after they have served 20 years of their sentence. In reviewing the petition, judges must consider mitigating factors of youth, the diminished culpability of youth compared to adults, the defendant’s history of abuse or neglect during childhood, the defendant’s work towards rehabilitation, the circumstances surrounding the crime, and the recommendations of the U.S. Attorney and Bureau of Prisons. NACDL has joined a coalition of national organizations expressing support for this legislation.
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 Director of 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

Legislation to Decriminalize Marijuana Introduced in the Senate 

In June, Senate Minority Leader Chuck Schumer introduced S. 3174, legislation that would decriminalize marijuana at the federal level by removing it from the Controlled Substances Act. The bill would also provide $20 million annually for state and local programs to expunge or seal the criminal records of people convicted of marijuana possession.

Not only are our harsh drug laws a contributing factor to the United States incarcerating 25 percent of the world’s prison population, but these laws have a disproportionate impact on communities of color. African Americans and Latinos comprise nearly 80 percent of the country’s annual marijuana possession arrests, despite similar rates of use and sale with their white counterparts. The Administration has been slowly reinvigorating the failed war on drugs, and Attorney General Sessions has attempted to roll back policies that allowed states to legalize marijuana with little to no federal interference.

Tell your U.S. Senator it’s time to decriminalize marijuana – ask them to co-sponsor! 

Federal Forfeiture Laws Need Reform Now! 

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. Now is the time for Congress to pass forfeiture reform! Ask your Members of Congress to pass the FAIR Act. 

Act Now to Stop ICE Agents from Making Arrests at Courthouses 

Since the start 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 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 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 imposed on 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 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! 

Affinity Partners

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I have saved hundreds of dollars on printing costs with Office Depot because of the NACDL member discount. It’s paid for my dues many times over. 

Warren Wolf, NACDL Member (San Antonio, TX)

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The liability insurance offered through NACDL’s Affinity Partner Program is excellent. I've had it for many years.”

Linda Sheffield, NACDL Member (Ellijay, GA)

Website Redesign Survey

NACDL has partnered with agencyQ to reinvent NACDL.org, which serves as a primary communication channel with NACDL members, prospective members, and advocacy audiences.

Your help is needed to shape the new website. On July 23rd, you received an email with a link to a survey. Please take a moment to complete this important survey about NACDL's website. agencyQ will use the information you share to make technical recommendations for the website’s design and functionality.

The survey should only take about 12-15 minutes to complete.

All answers will be kept in confidence. This survey is anonymous. All responses will be compiled and analyzed as a group.

If you would like to be entered into a drawing to win one of five $50 Visa gift cards, you will need to enter your email address at the end of the survey. Your responses will still be kept in confidence and not connected to your email address, if you choose to provide one.

Please contact Jessica Stepan, NACDL’s Associate Executive Director for Strategic Marketing, with any questions you may have about the survey or the website redesign project in general.

In Other News

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Recent Updates to Restoration of Rights Project
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