NACDL Reports

Summary Injustice: A Look at Constitutional Deficiencies in South Carolina's Summary Courts

Summary Injustice Report When a person is accused of a crime and faces loss of life or liberty as punishment, the U.S. Constitution guarantees that person the right to a lawyer even if he or she cannot afford one. The U.S. Supreme Court affirmed this basic principle more than a half century ago in Gideon v. Wainwright, and in subsequent cases that expanded the right to misdemeanor prosecutions. Yet this right is violated every day in South Carolina’s magistrate and municipal courts – collectively referred to as summary courts – where scores of people are convicted, sentenced, and sometimes incarcerated, without having been represented by counsel. This report documents the constitutional violations observed by attorneys with NACDL and the ACLU in 27 different summary courts throughout the state during several weeks between December 2014 and July 2015.

This report demonstrates that these courts often fail to inform defendants of the right to counsel, refuse to provide counsel to the poor at all stages of the criminal process, and force defendants who cannot afford to pay fines to instead serve time in essentially a debtor’s prison. Concerns about bond setting, ineffective or absent advisement of rights, police prosecutors, and disproportionate impact on the poor are brought to light through the stories of individuals who have been adversely affected by this inadequate system.

Read the Report (PDF) | Project Overview 

The Colorado Bail Book: A Defense Practitioner's Guide to Adult Pretrial Release

Colorado Bail Book This Manual was created by the National Association of Criminal Defense Lawyers (NACDL) in partnership with the Office of the Colorado State Public Defender and the Colorado Criminal Defense Institute, and with grant support from the Bureau of Justice Assistance. 

In 2013, the Colorado legislature overhauled its pretrial release statutes, embracing the use of risk assessments and setting a clear presumption that individuals who have not yet been convicted of the crime for which they are accused should be free pending trial. This manual is designed to give Colorado practitioners the guidance needed to achieve pretrial release for clients. The Colorado Bail Book discusses the use of the validated Colorado Pretrial Assessment Tool (CPAT); outlines the provisions of the new CO bail statutes; highlights relevant case law and applicable state and federal constitutional provisions; and details the steps for appealing adverse bail decisions. The manual gives practical advice on making powerful and effective bail arguments and outlines some of the challenges faced by defenders when arguing bail.

The ramifications of pretrial detention are profound- people in pretrial detention often lose their employment, businesses, and housing; suffer disruptions in education; and experience serious damage to family relationships. Obtaining pretrial release, therefore, is an essential part of the promise of Gideon that defense lawyers are committed to provide and this manual is designed to give practitioners the guidance needed to achieve pretrial release for clients.

Read the Manual (PDF)

Federal Indigent Defense 2015: The Independence Imperative

Indigent Defense 2015 Report In the wake of the severe cuts to the provision of indigent defense services during sequestration in 2013, the National Association of Criminal Defense Lawyers (NACDL) created a Federal Indigent Defense Task Force to examine the federal indigent defense system. The 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 

Criminal Conspiracy: Position Paper and Proposals for Reform

Criminal Conspiracy Report At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. Before approving the resolution, the Board received a presentation by Subcommittee Co-Chairs Steven Morrison and John Cline on the flawed nature of existing criminal conspiracy law and the critical need for reform. The presentation focused on how existing conspiracy law results in possible constitutional violations, evidentiary unreliability, and false convictions. The Co-Chairs also presented the recommendations contained in the position paper, which would address, among other things, the overt act requirement, jury instructions, Pinkerton liability, and more. Read the Board resolution here.

Read the Report (PDF)

Mail Cover Surveillance: Problems and Recommendations

Mail Cover Surveillance Report 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)

Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

Material Indifference CoverIn 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 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 

Collateral Damage: America's Failure to Forgive or Forget in the War on Crime - A Roadmap to Restore Rights and Status After Arrest and Conviction

collateral damage webWith 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. 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 

What's Old Is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness)

Digital Searches Report ImageIn May 2014, NACDL’s Board of Directors adopted a white paper on law enforcement searches of digital evidence.  Entitled What's Old Is New Again: Retaining Fourth Amendment Protections in Warranted Digital Searches (Pre-Search Instructions and Post-Search Reasonableness), the report makes nine recommendations for reform to the judiciary, legislature, and law enforcement entities to require pre-search restrictions in a warrant for digital evidence, including a waiver of the plain view doctrine, requiring law enforcement to secure a warrant if evidence of an unrelated crime is discovered during the search, and a suppression remedy if the pre-search requirements are not met.

Read the Report (PDF)

Gideon at 50 Part II - Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

Gideon at 50 Part 2This 50-State Survey of Financial Eligibility Guidelines for Assigned Counsel documents how states decide who is “too poor” to hire a lawyer. The survey looks at how states define “indigency” and whether or not that definition is consistent with ABA standards for providing defense services. It identifies which states rely on the Federal Poverty Guidelines when determining eligibility for assigned counsel, and explains the origin of the Federal Poverty Guidelines and how they cannot accurately predict who is “too poor” to hire a lawyer. The survey then looks at the fees and costs imposed on supposedly indigent defendants who are assigned counsel. These include application fees, payable at the time a request for counsel is made, and reimbursement fees, payable at the conclusion of the case or over time. The report concludes that in adopting unduly restrictive eligibility criteria and other policies, too many states have been able to ignore the central premise of Gideon that “lawyers in criminal courts are luxuries, not necessities.”

Read the Report (PDF) | Gideon at 50 Project Overview  

Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System

Racial Disparity ReportCriminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System is a critically important and inclusive examination of the profound racial and ethnic disparities in America's criminal justice system, and concrete ways to overcome them. This conference report prepared by Consultant Tanya E. Coke is based upon a multi-day, open and frank discussion among a distinguished group of criminal justice experts – prosecutors, judges, defense attorneys, scholars, community leaders, and formerly incarcerated advocates. This three-day convening was held October 17-19, 2012, at the New York County Lawyers' Association's historic Home of Law and was co-sponsored by the following organizations: the Association of Prosecuting Attorneys, the Brennan Center for Justice at New York University School of Law, the Foundation for Criminal Justice, the National Association of Criminal Defense Lawyers, the Center for NuLeadership on Urban Solutions, and the New York County Lawyers' Association.

Read the Report (PDF) | Report Overview 

Gideon at 50 Part I - Rationing Justice: The Underfunding of Assigned Counsel Systems

Rationing Justice: The Underfunding of Assigned Counsel SystemsThis report documents the unreasonably low rates of compensation paid to private attorneys who represent indigent defendants in state courts. The lack of adequate funding restricts the pool of attorneys willing to represent indigent defendants and creates conflicts of interest for attorneys by encouraging them to limit the amount of work they perform on a case for an indigent client. More experienced attorneys refuse to participate in assigned counsel systems that pay hourly rates far below the market rate while younger attorneys, who are often burdened by student loans, never even consider joining the defense bar. Even more troubling is the possibility that low hourly rates will encourage some attorneys to accept more clients than they can effectively represent in order to make ends meet. The result is an inadequate, inexperienced, overworked and inherently conflicted pool of attorneys accepting court appointments in our criminal courts. 

Read the Report (PDF) | Gideon at 50 Project Overview 

National Indigent Defense Reform: The Solution is Multifaceted

This report summarizes the highlights of the wide–ranging discussion and innovative proposals for reform discussed during a focus group convened in 2012 by NACDL and the American Bar Association Standing Committee on Legal Aid and Indigent Defendants. The report is divided into three broad topics. First, the report discusses front-end reforms such as reclassification and diversion, which help reduce the number of cases entering the system. Next, the report turns to the delivery of services, including the importance of standards and commissions, the central role of the private bar, and development of training. Third, the report considers the need for collaboration and cooperation with others within and outside the criminal justice system in order to achieve significant and sustainable reform.

Read the report. (PDF)  

Electronic Surveillance & Government Access to Third Party Records

Third Party Records Cover (Updated)In February, 2012 NACDL’s Board of Directors adopted a white paper report on Law Enforcement Access to Third Party Records. Federal laws protecting individual privacy rights in electronic communications have not been meaningfully updated in over 25 years, even though many of today’s technologies were not even conceived of when Congress considered the legislation and when the Supreme Court created the “Third Party Doctrine.” Because of society’s reliance on third party carriers, such as Internet service providers, cellular phone service providers, and “cloud” computing services, to communicate, work and socialize, privacy laws need to be updated to keep pace with today’s evolving technologies. This white paper discusses the current status of the law, including federal laws such as the Electronic Communications Privacy Act, and Supreme Court precedent, including United States v. Jones, and concludes with recommendations for reform, such as a recommendation that law enforcement officers should be required to obtain a warrant based on probable cause before they can access the content of electronic communications or geolocation information. 

Read the report. (PDF) 

Evaluating Grand Jury Reform in Two States: The Case for Reform

Grand Jury Report CoverNACDL issued a groundbreaking new report on restoring and reforming the grand jury system-- Evaluating Grand Jury Reform in Two States: The Case for Reform. This research reflects an in-depth study of grand jury reform in two states – New York and Colorado. In conducting this study, researchers Erin Crites, Jon Gould and Colleen Shepard of the Center for Justice, Law & Society at George Mason University studied the experiences of prosecutors, defense lawyers and retired judges. Four key reform recommendations emerge from the research: (i) defense representation in the grand jury room, (ii) production of witness transcripts for the defense, (iii) advance notice for witnesses to appear, and (iv) the presentation of exculpatory evidence to the grand jury.

Read the report. (PDF) 

Three Minute Justice: Haste and Waste in Florida's Misdemeanor Courts

FL Three Minute Report 150x100Nearly a half million people, or approximately three percent of Florida's adults, pass through the state's misdemeanor courts each year. Most are found guilty. The average court appearance lasts as little as three minutes.

Read the report. (PDF) 

Proposed 18 USC § 3014, Duty to Disclose Favorable Information and Commentary

NACDL Discovery Legislation and CommentaryMany recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) has endorsed model legislation drafted by NACDL's Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case.

Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law

without_intent_150x100The National Association of Criminal Defense Lawyers and The Heritage Foundation jointly undertook an unprecedented look at the federal legislative process for all studied non-violent criminal offenses introduced in the 109th Congress in 2003 and 2006. This study revealed that offenses with inadequate mens rea requirements are ubiquitous at all stages of the legislatives process: Over 57 percent of the offenses introduced, and 64 percent of those enacted into law, contained inadequate mens rea requirements, putting the innocent at risk of criminal punishment. Compounding the problem, this study also found consistently poor legislative drafting and broad delegation of Congress's authority to make criminal law to unaccountable regulators.

Read the report (PDF) | Project Overview 

Principles and Recommendations for Strengthening Forensic Science in the Courtroom

Strengthening Forensic Science in the United States: A Path Forward (Cover)Forensic science evidence presented in court is often based on speculative research, subjective interpretations and inadequate quality control procedures, according to a report just released by the National Association of Criminal Defense Lawyers (NACDL). Police need to be taken out of the laboratory, and the "crime labs" need to be taken out of the police station, with the goal of ensuring the scientific integrity of forensic science evidence. Neutrality and objectivity are as essential to preventing wrongful convictions and exonerating the innocent as they are to solving crimes and convicting the guilty.

Read the report. (PDF) 

America's Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform

problem_solving_150x100The debate over drug enforcement policy in the United States is almost always framed in stark terms premised on narrow options. Conventional thinking about criminal justice issues—prison, community corrections, probation, or possibly some sort of diversion program for minor offenses and first-time offenders—has not worked, nor has it abated the addiction problem. Drug courts have swept the nation without much debate or input from the criminal defense bar. That input is long overdue.

This report seeks to inform and redefine the debate by considering and challenging the fundamental criminal justice lens through which drug-related issues are evaluated. Because "the definition of the alternatives is the supreme instrument of power," accepting the criminal justice paradigm legitimizes drugs courts while ignoring other smart, fair, effective, and economical approaches. The report also summarizes the history and evolution of drug courts, evaluates their operation and effectiveness, makes an overarching recommendation on the treatment of addiction, and offers a number of recommendations to ensure that the procedures and practices in drug court comply with constitutional and ethical norms

Read the report. (PDF) 

Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts

minor_crimes_150x100The explosive growth of misdemeanor cases is placing a staggering burden on America's courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers' money is wasted.

 Read the report. (PDF) 

Federal Grand Jury Reform Report & Bill of Rights

Federal Grand Jury Report CoverWhen the grand jury was incorporated into our constitutional structure, its primary role was to protect the individual from unfounded accusations. Today, the federal grand jury today functions primarily as a tool of the federal prosecutor. Employing the power of compulsory process in a secret proceeding, the prosecutor investigates and determines, with virtually no check, who will be indicted and for what. The National Association of Criminal Defense Lawyers (NACDL) created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions.

Read the report (PDF). 

Proposals to Reform the Federal Money Laundering Statutes

MLTF CoverMoney laundering, or the transfer of criminally derived money into legitimate channels, statues were originally enacted to curb drug trafficking and organized crime. However, the purview of the money laundering laws has slowly grown to include a wide range of activities, including routine business transactions. At the same time, courts have minimized and blurred the evidentiary requirements for establishing money laundering. As interpreted and applied, the current law is a cruel trap for unwary individuals and businesses that inflicts felony convictions, draconian and inflexible prison sentences, and ruinous asset forfeiture. NACDL has proposed several technical statutory amendments to rectify the money laundering regime’s most serious flaws by simplifying and clarifying current law, facilitating compliance efforts by individuals and businesses, and by focusing federal law enforcement on serious misconduct.

Read the report. (PDF)

In This Section

Advertisement Advertise with Us