U.S. District Court Judge Emmet G. Sullivan’s letter to the Judicial Conference Advisory Committee on the Rules of Criminal Procedure, regarding federal disclosure obligations and suggesting an amendment to the Federal Rules of Criminal Procedure.

NACDL President Chris Adams' comments to Education Secretary Miguel Cardona regarding the Office for Civil Rights' review of amendments made in 2020 to regulations guiding TItle IX investigations and proceedings.

NACDL President Drew Findling's letter to Education Secretary Betsy DeVos regarding proposed regulations for campus hearings pursuant to Title IX funding, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance Docket No. ED-2018-OCR-0064.

Comments to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed amendments to Rule 12 of the Federal Rules of Criminal Procedure.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to procedures in the Foreign Intelligence Surveillance Court.

NACDL President Lisa Wayne's comments to the Department of Justice Office of Legal Policy regarding a proposed rule that would allow states to limit federal review of capital post-conviction cases.

NACDL President Jim Lavine's comments to the Department of Justice Office of Legal Policy regarding a proposed rule that would allow states to limit federal review of capital post-conviction cases.

Coalition letter to Governor Greg Abbott, of Texas, regarding his executive order (GA-13) refusing to allow release of inmates from state detention facilities during the COVID-19 pandemic.

NACDL President Nina J. Ginsberg's written statement to the Washington, D.C. City Council Judiciary and Public Safety Committee regarding proposed legislation to prohibit "panic" defenses in criminal cases.

Asset Forfeiture Abuse Task Force co-chair E.E. (Bo) Edwards's testimony to the House Judiciary Committee regarding the Civil Asset Forfeiture Reform Act (H.R. 1916, 1995) and federal asset forfeiture programs.

Asset Forfeiture Abuse Task Force co-chairs E.E. (Bo) Edwards, David B. Smith, and Richard Troberman's written statement to the House Judiciary Committee regarding the Civil Asset Forfeiture Reform Act (H.R. 1916, 1995) and federal asset forfeiture programs.

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

Argument: In this case, the Eleventh Circuit, applying plain error review, reaffirmed Petitioner’s conviction. This followed an intervening change in law, which required the government prove beyond a reasonable doubt an additional element of the crime. Although the government had not introduced evidence of this element at trial, the Eleventh Circuit nonetheless affirmed Petitioner’s conviction—which it did only by going beyond the trial evidence. This is contrary to the purpose of plain error review, which is only to correct manifest injustices, and raises fairness concerns, as numerous criminal defendants have been foreclosed from introducing evidence on plain error review. The decision below further raises Constitutional concerns under both the Fifth and Sixth Amendments. It violates the defendant’s due process rights by allowing judges to make a decision of guilt on an element of the crime—a decision reserved for the jury alone.