NACDL files amicus briefs in federal and state courts across the nation in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal legal system as a whole. NACDL is one of the most successful of the frequent amicus contributors to the nation’s state and federal courts, in part because NACDL draws upon the collected expertise of the nation’s criminal defense bar.

Brief of the National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Defendant-Appellant.

Argument: The Circuit should hold that a frisk commences when an individual is forced to assume an “in search” position. Terry frisks have become a routine and routinely abused police tactic. Consistent federal-state application of the exclusionary rule is the only effective way to deter law enforcement from performing intrusive, humiliating, and unconstitutional body frisks. Unlawful Terry frisks are only challenged in criminal cases where suppression is unappealing but necessary. New York State courts recognize that suppression is a necessary and appropriate remedy to deter pretextual stop-and-frisks and police perjury. Deterrence will be undermined if federal and state courts assess Terry frisks differently and apply the exclusionary rule inconsistently.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent. 

Argument: Contrary to the government’s position, there was nothing “usual, average, or normal” about the sea change in sentencing law caused by Booker. The Sixth Circuit should explicitly acknowledge that a district court has the discretion to consider, as part of its “extraordinary and compelling” analysis, inappropriately harsh sentences received by some defendants in the unconstitutional pre-Booker regime.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent.

Argument: In enacting the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i), Congress created a safety valve that allows a sentence in any case to be terminated early under extraordinary and compelling circumstances, regardless of whether the sentence was originally imposed pursuant to a mandatory sentencing provision.  This is clear from the statute’s text, its legislative history, and the practice of federal judges around the country. The Sixth Circuit should explicitly acknowledge that the District Court acted within the authority Congress gave it when it granted compassionate release to Mr. John Bass who was serving a “mandatory minimum” of life in prison “without release.”

Brief of Amici CuriaeAmerican Civil Liberties Union, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers.

Argument: Compelling a criminal suspect to disclose a passcode is testimony privileged by the Fifth Amendment. The Fifth Amendment prohibits compelled disclosure of the contents of a suspect’s mind. Compelled disclosure of the passcode is testimonial. The Fifth District properly declined to apply the foregone-conclusion rationale in this case. The Foregone-conclusion analysis applies only to the production of specified, preexisting business records. Even if the foregone-conclusion rationale could apply in this context, the state must describe with reasonable particularity the incriminating files it seeks. Law enforcement has alternative methods of accessing encrypted devices.

Brief Of Amici Curiae The Dkt Liberty Project, The Cato Institute, Collateral Consequences Resource Center, Clause 40 Foundation, Law Enforcement Action Partnership, The Macarthur Justice Center, The R Street Institute, The Sentencing Project, And The National Association Of Criminal Defense Lawyers In Support Of Plaintiffs-Appellants.

Argument: State licensing schemes that categorically bar individuals with prior criminal convictions from holding various professions are irrational. Across the country, these licensing schemes cover almost every profession imaginable. However, these regulations frequently do nothing other than bar those with criminal records from entering a profession. These regulations prevent those with felony convictions from, among other things, operating a taxicab, performing marriages, and working as a tag officer at a state department of motor vehicles. This is true regardless of whether the individual has been convicted of a major fraud, a violent crime, or something as minor as felony littering. States regularly impose criminal-history restrictions on occupational licenses that are entirely unrelated to the applicant’s fitness to be a contributing member to the profession. And these restrictions—which bar individuals with prior convictions from finding gainful employment—contribute to recidivism, further underscoring their irrationality. Although courts have held that these licensing schemes are subject to only rational basis review, rational basis is not a toothless standard; it requires that a court find some logical relationship between the restriction—here, two felony convictions—and the occupation being regulated—here, emergency medical technicians (“EMTs”). Courts historically have been critical of, and have struck down under this test, broad regulatory schemes that bar membership of an applicant who has any felony conviction. Because California’s regulatory scheme bars individuals convicted of any two felonies without regard for whether the crimes at issue implicate the applicant’s fitness to become an EMT, including to fight fires, this scheme likewise fails rational basis review. As a result, this Court should vacate the district court’s order granting the defendants’ motion to dismiss and remand this case for further proceedings.

Brief Amicus Curiae of National Association Of Criminal Defense Lawyers In Support Of Petitioner (on petitioner for a writ of certiorari).

Argument: Timely resolution of the question presented is of great practical importance to First Step Act movants. Appellate-court decisions remanding for considers of the § 3553(a) factors have resulted in significantly reduced sentences. The temporal gap between the original sentencing and First Step Act proceeedings underscores the importance of an update § 3553(a) analysis. In light of the very real possibility that renewed § 3553(a) consideration results in lower sentences, the Court must intervene now.

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner. 

Argument: The Court should adopt a rule that individuals seized during criminal proceedings in violation of their Fourth Amendment rights need only show that the criminal case terminated in their favor in order to proceed with a Section 1983 action to redress the constitutional violation.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant Wayne Wilkerson.

Argument: The district court erred by not requiring mens rea, which is a cornerstone requirement for criminal liability and punishment. The district court erred in premising the fraud convictions on non-disclosure absent any cognizable duty to disclose.

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: This case asks whether an individual seized during criminal proceedings in violation of the Fourth Amendment must prove that the criminal proceedings ended in a manner indicative of their innocence in order to succeed in a section 1983 action to redress the violation of their constitutional rights. A majority of lower courts have wrongly decided that a termination demonstrating innocence is an element of such constitutional claims. This Court should grant certiorari and hold that no such element exists. First, the lower courts’ conclusion contradicts the deeply rooted principle that our criminal system presumes innocence and adjudicates only whether a defendant is guilty beyond a reasonable doubt. Second, because it is usually impossible to show that criminal proceedings terminated in a manner indicating innocence, the lower courts’ innocence requirement forecloses section 1983 claims for many individuals whose detention and prosecution violate their Constitutional rights. Third, the lower courts’ conclusion that a termination indicating innocence is an element of federal constitutional claims contradicts many of this Court’s cases.

Brief for Amici Curiae National Association of Criminal Defense Lawyers and the Cato Institute in Support of Appellee and Urging Affirmance. 

Argument: Statutes of limitations must be interpreted in favor of repose. Statutes must be interpreted to avoid absurd results. The government's proposed interpretation of 18 U.S.C. §§ 3282 and 3288-- under which it obtains a six-month extension of the statute of limitations by filing a defective information the day before the statute runs and moving to dismiss it the day after--flouts the Toussieprinciple. That interpretation also violates the rule that courts will not interpret statutes in a way that produces an absurd result. The Seventh Circuit case on which the government principally relies--United States v. Burdix-Dana, 149 F.3d 741 (7th Cir. 1998)--overlooks both these principles and is poorly reasoned in other respects as well. The government seeks to obtain through a tortured interpretation of §§ 3282 and 3288 an outcome that Congress refused to enact when the Department of Justice proposed it as legislation last year, at the outset of the coronavirus pandemic. The district court correctly rejected the government's approach. This Court should affirm.

Brief of National Association Of Criminal Defense Lawyers as Amicus Curiae in Support Of Respondent. 

Argument: Depriving the defendant of the right to decide whether to plead guilty unconstitutionally undermines his autonomy interest. The decision to plead guilty is entrusted to the defendant alone and thus implicates his fundamental autonomy interest. The requirement that a guilty plea be knowing and voluntary safeguards the defendant’s autonomy interest. The failure to inform the defendant of each element of the offense to which he is pleading guilty requires vacatur of the plea. Permitting the court to impose punishment based on hypothetical guilty pleas would be a dangerous constitutional innovation. Given that the Framers’ vision of a system of jury trials has already been displaced by pleas, the Court should not accept anything less than informed and voluntary pleas. 

Brief for Amicus Curiae National Association Of Criminal Defense Lawyers in Support of the Respondent.

Argument:  Administrative proceedings do not guarantee participants the assistance of counsel, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and various other protections that apply in a criminal trial.  For these reasons, administrative proceedings do not typically preclude parties from relitigating any fact decided in the agency hearing at a subsequent criminal trial. The government’s prosecution of a noncitizen for unlawful reentry under 8 U.S.C. § 1326 is a notable departure from this general rule.  Due process requires that § 1326 defendants be afforded some meaningful opportunity to obtain judicial review of the proceeding that is the foundation for the government’s prosecution. The Court should therefore allow Respondent to challenge the validity of his removal order in the criminal proceedings, even though he has not satisfied the requirements set forth in 8 U.S.C. § 1326(d).

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellee/Cross-Appellant and Urging Reversal. 

Argument: Mr. Sumpter was convicted of several sexual misconduct offenses and one count of aggravated kidnapping. The kidnapping conviction added 186 months to his sentence. Mr. Sumpter’s convictions were affirmed on direct appeal and his state post-conviction motion was unsuccessful. Kansas has appealed to the 10th Circuit. The aggravated kidnapping conviction and sentence were vacated by the United States District Court in Kansas when the court partially granted the 2254 petition and concluded Mr. Sumpter had been denied effective assistance of counsel as to the kidnapping conviction. Mr. Sumpter was convicted of forcefully confining the accuser, yet trial counsel failed to assert the defense, long established in Kansas case law, that the alleged forced confinement was not independent of the offense of attempted rape. The defendant followed the accuser to her car and attempted to sexually assault her in the car before the victim was able to force him out of the car. Defense counsel thus should have argued that there was no forced confinement independent of the alleged attempted sexual assault. The amicus brief argues that the failure of counsel to present this long-recognized defense to the kidnapping charge resulted in an unconstitutional application of the Kansas kidnapping statute. Mr. Sumpter was convicted of kidnapping without any determination that the alleged forceful confinement was independent of the attempted sexual assault. Therefore, the district court order vacating the kidnapping conviction should be affirmed.

Brief of Retired Federal Judges, Former Federal Prosecutors, and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner. 

Argument: Defendants sentenced for crack cocaine offenses under the pre-2010 version of § 841(b)(1)(C) are eligible for resentencing under the First Step Act of 2018.  The First Step Act’s resentencing provisions apply to offenses whose penalties were “modified” by the Fair Sentencing Act in 2010.  Although defendants sentenced under the pre-2010 version of § 841(b)(1)(C) remain eligible for their original sentences after the statute was recently amended, the sentences they would have received under the post-2010 version of the statute almost certainly would have been lower—likely significantly lower.  That is because the Fair Sentencing Act dramatically expanded the drug quantities to which § 841(b)(1)(C) applies.  All else equal, a sentencing judge generally aims to align the various drug-quantity ranges in § 841(b) with the corresponding sentence ranges—assigning lower sentences for lower quantities and higher sentences for higher quantities.  In other words, the drug-quantity benchmarks in § 841(b) exert a powerful anchoring influence over a judge’s sentencing decisions.  And Congress changed the relevant anchor points 2010.  Thus, it “modified” the statutory penalties in § 841(b)(1)(C), and defendants sentenced under that provision are entitled to resentencing.