September-October 2021

September-October 2021 Cover

While defense lawyers should not abandon vigorously defending their clients before juries, the reality is that most cases end in a plea deal, and thus lawyers should view trial preparation through the lens of sentencing.


Articles in this Issue

  1. Affiliate News

    What events are NACDL affiliates hosting this month? Find out here.

  2. Book Review: Unexampled Courage by Richard Gergel

    This month Tony Bornstein reviews Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of America by Richard Gergel.

  3. Book Review: Waiting for an Echo by Christine Montross, M.D.

    This month Elizabeth Kelley reviews Waiting for an Echo: The Madness of American Incarceration by Christine Montross, M.D.

  4. Defending a Client in a Mandatory Self-Disclosure World

    Representing Federal Government Contractors in Parallel Criminal, Civil, and Administrative Investigations

    Federal contractors often face a “three-headed monster” of parallel criminal, civil False Claims Act, and administrative investigations. Each investigation involves different procedures, different obligations, and different potential sanctions. Sara Kropf and Margaret Cassidy provide practical approaches to developing strategies to help manage risk.

  5. From the President: Legalized Coercion and Mass Incarceration

    Why the Trial Penalty Does Greater Violence to People of Color and the Poor

    The trial penalty – the difference between a pretrial settlement offer and a post-trial sentence – punishes everyone caught in the machinery of the criminal legal system but injures people of color and the poor more than others.

  6. Reconsidering Joint and Several Restitution

    Does a common feature of restitution orders – joint and several liability – violate the Excessive Fines Clause? There is “no general federal right to contribution” between co-defendants under restitution orders. This seemingly creates an Eighth Amendment problem in that a defendant can be held jointly liable for a co-defendant’s restitution yet has no right to collect contribution from the co-defendant.

  7. Sentencing: The Trial Practice for the 21st Century

    Because 90 percent of all federal cases end in a plea deal, criminal defense lawyers have become sentencing lawyers rather than trial lawyers. Defense lawyers should not abandon vigorously defending their clients before juries. The authors suggest, however, that lawyers must begin to view trial preparation through the lens of sentencing.

  8. Shifting the ‘Burden of the Defense’ in White Collar Conspiracy Prosecutions

    How can a defense attorney minimize the potentially long-lasting impact of burdensome pretrial release conditions? How can the defense attorney engage in meaningful review, especially when the assistant U.S. attorney refuses to produce an exhibit list?

  9. The DOJ’s Mixed Record on Cases Against Traders

    DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.