The Foundation for Criminal Justice (FCJ) stands at a crossroads in the history of America’s criminal justice system. A not-for-profit charitable organization that pursues key criminal justice reforms, the FCJ seeks a fairer, more humane criminal justice system through a wide range of educational and reform projects. Today, it faces unprecedented opportunities to create a better criminal justice system. Likewise, it opposes unprecedented threats to everyday liberties posed by abuses of the criminal law.
Here are some areas in which the FCJ supports criminal justice reform projects:
You can learn more by reading the FCJ's most recent annual report
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The FCJ supports myriad activities to reform local, state, and federal indigent defense systems. The FCJ embraces the fundamental concept that counsel must be provided to all accused persons at any court appearance at which a guilty plea to any crime may be entered or at which liberty is at risk. This goal remains elusive throughout much of the country.
Highlights of the specific FCJ-supported
efforts to preserve and protect the
right to counsel include:
The establishment of a
Task Force on Federal Indigent Defense to produce a comprehensive study of the
state of the federal indigent defense system and an assessment of the extent to
which it comports with the American Bar Association’s (ABA) Ten Principles for
An Effective Indigent Defense System;
events and publications to focus attention on the recent crisis in the federal
indigent defense system; and
Sponsorship of several
major reports on various problems that contribute to the indigent defense
crisis in America. Some specific examples include:
• Two studies of America’s broken misdemeanor
• A study on the underfunding of assigned
• A study on obstacles to access to counsel;
• A roadmap to promote reform of the nation’s
indigent defense system
Federal Indigent Defense
In the wake of the severe cuts to the provision of indigent defense services during sequestration in 2013, the FCJ provided critical funding to NACDL's Federal Indigent Defense Task Force to examine the federal indigent defense system. The task force's mission included an assessment of the level of independence afforded to the Defender Services Office and consideration of whether reforms are necessary to ensure adherence to the ABA’s Ten Principles of a Public Defense Delivery System. After extensive research and more than 130 interviews with key stakeholders, the Task Force identified several significant, persistent deficiencies in the system. This report explores those concerns and offers seven recommendations to assure a robust federal indigent defense system.
Read the Report (PDF) | Project Overview
Representing Individuals Facing Immigration-Related Consequences
The FCJ supported scholarships that allowed over 50 immigration faculty, immigration experts, public defenders, trainers of trainers, and similar candidates to attend a March 2014 seminar on collateral consequences of conviction that included immigration-specific parallel programming.
This seminar followed the FCJ's and NACDL's other efforts in the wake of the Supreme Court's decision in Padilla v. Kentucky that lawyers must advise clients of possible immigration-related collateral consequences of conviction. Shortly after the decision, the FCJ suppoted the creation of a series of free, live web trainings on implications of the decision. Sessions focused on an overview of current and emerging issues, drug offenses, and domestic and violence cases.
Additionally, and with support from the FCJ, NACDL and the National Legal Aid and Defender
Association (NLADA) co-hosted a convening of leading defense lawyers,
law professors, and other stakeholders to discuss the impact of the
Supreme Court's decision in Padilla v. Kentucky. The convening, whch took place in summer 2011, was documente in the Fordham Urban Law Journal. You can read more about the convening, read the table of contents the table of contents, or contact Daniel Weir for a copy of the journal documenting the convening.
Watch the trainings.
Additional Access to Counsel Initiatives
In partnership with NACDL and other allies, the FCJ supports indigent defense reform in several states and in the federal system. The FCJ's efforts to ensure the right to counsel include support for projects including impact litigation, academic conferences on the status of the right to cousnel, developing research, reports and resources for stakeholders and reformers, and other projects. The FCJ also supports NACDL's Indigent Defense Reform and Litigation Fund.
FCJ support enabled the release of several major reports on various issues that contribute to the indigent defense crisis in America. These reports and others can be found at www.nacdl.org/reports. Some specific examples include:
Representing Juvenile Defendants
The FCJ is also funding a number of NACDL projects designed to address sentencing reform after the Supreme Court’s decisions in Graham v. Florida and Miller v Alabama. Both decisions are landmark events in juvenile justice; the Graham holding that no juvenile defendant can be sentenced to life without parole for a non-homicide offense, and Miller banning mandatory life-without-parole sentances for juvenile offenders. With support from the FCJ, NACDL has conducted multiple online trainings aimed at individuals who represent juveniles in adult court.
View recent trainings.
Padilla and the Future of the Defense Function
In Padilla v. Kentucky, the Supreme Court held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The decision is an important breakthrough because it formally recognizes that the sentence for a criminal offense necessarily extend beyond the conviction and the term of incarceration or parole to the critical civil consequences of the conviction. In holding defense lawyers accountable for explaining these civil consequences to their clients, Padilla represents a critical expansion of the role and duties of the defense lawyer not just with regard to immigration consequences, but more generally to the impact that the criminal case will have on the entirety of the client’s legal existence. The FCJ and NACDL have been at the forefront of efforts to fully understand the implications of Padilla and help the defense bar to implement its holding. FCJ Projects have included:
Convening on Padilla and the Defense Function
On June 20-21, 2011, the FCJ supported NACDL and the National Legal Aid and Defender Association (NLADA) as they co-hosted a convening of leading defense lawyers, law professors, and other stakeholders to discuss the impact of the Supreme Court’s decision in Padilla v. Kentucky, which recognized that the legal advice and assistance provided by defense counsel must go beyond the direct outcome of a criminal prosecution. To learn more about this event, click here.
Fordham Urban Law Journal on Padilla
In June, the FCJ and NACDL co-sponsored a convening that brought together criminal defense attorneys from across the country to discuss the Supreme Court’s recent decision in Padilla v. Kentucky and to examine the ways in which the decision will affect defense lawyers’ duties to advise their clients of the collateral consequences of criminal convictions. The discussions revolved around such pressing issues as consequences affecting immigration status and access to employment. The convening was documented in the Fordham Urban Law Journal, Volume 39, Issue 1. The volume includes the Report of the Conference, as well as the Keynote Address by New York Chief Judge Jonathan Lippman.
To view the Table of Contents, click here.
To obtain a copy of the Padilla issue, please email Daniel Weir at firstname.lastname@example.org.
Web-trainings on Complying with Padilla
Immediately after the Padilla decision, NACDL held a free online training to explain the decision to the defense bar and begin talking about how to comply. Since that time, NACDL has held a number of follow-up trainings online to help the defense bar effectuate the decision, including sessions on the immigration consequences of domestic violence cases, collateral consequences and drug offenses. These sessions remain available for viewing online, for free. To view the sessions, click here.
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Overcriminalization is a dangerous trend that the FCJ is working to reverse. The problem is compounded by a system that unduly imbues prosecutors with an excessively disproportionate array of tools, including unbridled charging authority, mandatory minimum sentences, and largely unreviewable discretion to control the flow of information to the defense.
Material Indifference and Brady Disclosure
In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted With FCJ support, NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The Study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.
Read the Report (PDF) | Project Overview
Grand Jury Reform
With the support of the FCJ, NACDL undertook a study to understand the impact of grand jury reform on the criminal justice system. On November 10, 2011, NACDL released a groundbreaking report on restoring and reforming the grand jury system--Evaluating Grand Jury Reform in Two States: The Case for Reform (PDF). This report summarizes in-depth research into the impact of grand jury reform in New York and Colorado. The report considers the experiences of prosecutors, defense lawyers and retired judges, and illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury.
Other Efforts to Fight Overcrim
The FCJ sponsored a June 2012 forum and panel discussion entitled Prosecutorial Misconduct, Legal Ethics and Fair Dealing: Does the Criminal Justice System Need Reform? The panel focused on the extraordinary misuse of government power to create an expansive, wasteful and inherently unjust system, as well as on specific high-profile instances of prosecutorial misconduct. It discussed the problem of overcriminalization, the abuse of the grant jury system, and the systemic problem of prosecutors suppressing evidence that is favorable to defendants.
Here are just some of
the ways that the FCJ stands up to overcriminalization and prosecutorial misconduct:
The FCJ supported a
recently released study and report on prompt access to
information that is
favorable to a client. Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases meticulously demonstrates how Brady’s
materiality standard incentivizes non-disclosure of favorable information.
Efforts to ensure
broader discovery rights and more effective means to ensure that the defense is
universally and timely given access to helpful information that prosecutors
know or should know;
Efforts to require
that all criminal statutes include meaningful mens rea, or criminal intent,
Opposition to the
imposition of vicarious liability with insufficient evidence of personal
awareness or neglect;
mandatory minimum sentences;
Opposition to the
undue expansion of the criminal law to regulate personal behavior and to
inappropriately supplant civil regulatory regimes with criminal penalties; and
Opposition to the
unnecessary federalization of crimes traditionally reserved for state jurisdictions.
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Federal, state, and local law enforcement arrest some 14 million people annual, and it is estimated that nearly 70 million adults have criminal records. There are at least 45,000 collateral consequences of arrest or conviction. This vast array of legal restrictions, generalized discrimination, and social stigma have become more severe, more public, and more frequently permanent. The FCJ and NACDL are undertaking efforts to rein in this worrisome trend.
Collateral Damage and the Task Force on the Restoration of Rights
With more than 65 million people in America having some form of a criminal record, the universality and import of the problem this nonpartisan report tackles is tremendous. With critical support from the FCJ, NACDL's Task Force on the Restoration of Rights and Status After Conviction held hearings all over the country, featuring testimony from more than 150 witnesses from every corner of the criminal justice system, as part of the research leading to this report. Included among the witnesses were those who have faced unfair, irrational, and often life-altering barriers arising from a brush with the criminal law. Many of their stories are captured in the report. And many more are available in the complete transcripts of the Task Force’s hearings. With more than one in four adults in the United States having some form of a criminal record, and more than 2.2 million people currently behind bars in the United States, more than any other nation in the world, the vast impact of the problem of collateral consequences and legal barriers to reentry is undeniable.
Read the Report (PDF) | Project Overview
Excessive Sentencing: NACDL's Proportionality Litigation Project
With support from the Foundation for Criminal Justice, NACDL published a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences.
Read about the project.
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As the nation is constantly reminded, racial and ethnic disparities permeate America's criminal justice system. the FCJ supports projects designed to constructively address these disparities.
Eliminating Racial Disparities in the Criminal Justice System
The Foundation for Criminal Justice sponsored Criminal justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System in partnership with NACDL and other partners. This groundbreaking project brought together leading experts from all corners of the criminal justice system over two conferences to identify effective and practical solutions to end racial and ethnic criminal justice disparities. Articles from the two conferences appeared in The New York University Journal of Legislation & Public Policy and in a series of articles published in The Champion, in addition to a three-part podcast series.
Learn more about the project.
With FCJ support, NACDL produced a webinar following events in Ferguson, Mo., on polarizing issues including racism, implicit bias, disparate sentencing policies, as well as, the over-policing of minority and poor communities. The result was Under Siege: The Defense Bar Examines Police Militarization, Ethnic & Racial Dynamics of Sentencing, and Their Impact on Criminal Justice Outcomes. The panels addressed militarization, ethnic & racial dynamics of sentencing and their impact on criminal justice outcomes, as well as the historical and systemic issues associated with crime and the response of police to those communities most affected by crime, and solutions policy makers and communities can make to solve these issues on the local, state and federal level.
Learn more about the project or watch the webinars.
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I no area is the role of the criminal defense more more vital than in defining individual privacy rights. The limit of the government's power to conduct searches and seizures is tested in the context of criminal cases. The constitutional validity of the government's surveillance and investigation method sis litigated when prosecutors offer evidence against someone who is accused of wrongdoing. The FCJ supports efforts to ensure that the Fourth Amendment remains a vibrant protection against encroachments on individual privacy and liberty.
Mail Cover Surveillance
NACDL's Fourth Amendment Advocacy Committee carefully and comprehensively studied issues concerning the current United States Postal Service Mail Covers regime in light of reports that the U.S. Postal Service’s mass mail covers surveillance program, which secretly monitors the mail of Americans, approved nearly 50,000 requests from law enforcement agencies as well as its own internal inspection unit, all without judicial review. That report also revealed that federal prosecutors used a mail cover to monitor the communications between a criminal defendant and his lawyers, one of whom was Past President of NACDL Cynthia Orr. NACDL's newly adopted report Mail Cover Surveillance: Problems and Recommendations analyzes the issues and offers a number of recommendations for addressing the issue, concluding that 'addressing the potential for mail covers to violate the Fourth Amendment and privacy norms is more important than ever.’
Read the Report (PDF)
Domestic Drone Information Center
NACDL’s Domestic Drone Information Center provides a one-stop source of cutting-edge information on the proliferation of drones inside the United States. It collects news from leading publications across the nation; features a comprehensive listing of legislative developments; and contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The Domestic Drone Information Center also aggregates existing material from other websites, making it a launching pad to additional information about domestic drones on the web. This project was made possible in part by support from the Foundation for Criminal Justice.
Research into the
implications for privacy and liberty posed by the advent of familial DNA
testing, including whether familial DNA testing comports with constitutional
principles, and whether corrective action is necessary to challenge or limit
this investigative technique;
Litigation designed to protect professionals,
students, and tourists from the unconstitutionally suspicionless seizure of
their laptop computers at border crossings;
Amicus efforts that challenge warrantless
GPS-tracking of citizens’ everyday movements;
and symposia to enhance the capacity of front line lawyers to effectively
litigate cutting-edge search and seizure issues in an age of rapidly advancing
technology, as well as to advance academic research into the intersection of
new technologies and the Fourth Amendment;
Visit the Center.
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The FCJ has enabled NACDL to take a leading role in ensuring that fundamental constitutional principles are not compromised in the name of national security. The John Adams Project, an effort undertaken in collaboration with the American Civil Liberties Union, seeks to ensure that even those accused of terrorism are given fundamental procedural protections designed to ensure that only the guilty are convicted, including, and perhaps most importantly, access to competent defense counsel who are given the resources and information necessary to prepare their case. The American defense bar recognizes that ill-equipped military attorneys, with minimal capital defense experience and inadequate support resources, cannot adequately vindicate the principles of justice which, until recently, provided a beacon of hope for the entire world. The John Adams Project is providing civilian attorneys, including death penalty counsel, as well as investigators and mitigation experts, to each of the five individuals charged capitally with causing the deaths that occurred on September 11, 2001.
The FCJ and NACDL continue to provide expertise, consultation, and support to the military and civilian lawyers representing detainees charged in the military commissions. Likewise, the organizations continue to identify and challenge the deficiencies in the military commissions system, independently advocating with respect to individual cases as well as broad policy initiatives and reform proposals. FCJ support has enabled several critical contributions in this area, such as the development of an ethics opinion supporting attorney-client privilege that was requested by military lawyers involved in military commission cases, amicus briefs challenging efforts by the government to restrict access of detainees to their lawyers, upcoming media trainings, and more.
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The Resource Counsel Project at NACDL, made possible by initial support from the FCJ, provides access to technical assistance for, among others, court-appointed counsel, contract defenders, and solo and small firm defense attorneys. The goal of this project is to give all defense lawyers access to information and direct assistance on as range of critical topics from the basics of criminal procedure, to the cutting edge of substantive criminal law, like motions to challenge eyewitness identification procedures. The Resource Counsel has developed a broad, web-based technical assistance module for defense lawyers, as well as provided innumerable attorneys with direct technical assistance.
Additional examples of recently launched
web-based training programs and resources are:
NACDL’s Compendium on
Electronic Recordation of Interrogation provides a complete, upto-date analysis
of laws that require law enforcement to record the entirety of custodial interrogations
— a principal source of wrongful convictions.
The Proportionality Litigation Project is a
collection of individual downloadable documents that summarize for each
U.S.state the key doctrines and leading court rulingssetting forth
constitutional and statutory limits on lengthy imprisonment terms and other
extreme (non-capital) sentences.
Having the resource counsel position has also permitted NACDL to obtain funding to train defense lawyers on a number of critical and topical issues. With support from the FCJ, NACDL coordinated a series of webinars to ensure that the criminal defense bar understands the implications of the Padilla v. Kentucky, Graham v. Florida, Miller v. Alabama, and Jackson v. Hobbs decisions. The trainings have been made available online without any charge, and remain available on demand, in an effort to reach the broadest possible audience. In addition, and with support from the Bureau of Justice Assistance, NACDL’s Resource Counsel has coordinated several national trainings that educate attorneys on litigating post-conviction innocence claims involving mainly flawed forensic evidence.
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The FCJ is concerned about the impact of money in judicial elections on judicial attitudes toward criminal defendants. Too often, judges are attacked in elections as being “soft of crime.” The FCJ is concerned that these attacks compels judges to set extreme bail, and oversentence criminal defendants, among other things. NACDL wrote an amicus curiae brief on the link between judicial elections and overly harsh treatment of criminal defendants in the case of Caperton v. A.T. Massey Coal Co. That brief is available here.
To look more closely at this issue, the FCJ has provided funding to NACDL to work in the area of judicial independence. With this funding, NACDL recently co-sponsored and helped to organize a conference on judicial independence at DePaul College of Law. Speakers at the conference included Illinois Supreme Court Justice Thomas Kilbride and former Iowa Supreme Court Justice David Baker. More information on this event can be found here.
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With support from FCJ, NACDL instituted a minority fellowship program in criminal defense law. The purpose of the fellowship is to increase diversity in the criminal defense bar by giving underrepresented populations an opportunity to gain experience in a criminal defense law practice. Under this program, NACDL is able to hire minority law fellows who spend eight weeks working in a criminal defense law practice at the offices of exceptional, experienced NACDL members. Over the first three years of the program, NACDL placed between two and five fellows each summer. Fellows actively intern in the assigned criminal defense law office and are also invited to participate in NACDL events and networking opportunities throughout the summer.