We write to propose a category of individuals who are deserving of clemency. Specifically, we respectfully request that you consider clemency for (1) individuals who suffered severe sentences as a consequence of having exercised their Sixth Amendment right to trial rather than having pleaded guilty and (2) individuals who accepted severe plea bargains under threat of substantially greater post-trial sentences. These scenarios—routine in our criminal justice system—illustrate a profound constitutional and human injustice: the “trial penalty”…

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Center for Legal and Evidence-Based Practices in Support of Appellant Julio Cesar Ortega Campoverde.

Argument: Mr. Ortega Campoverde is challenging the terms of his immigration detention, which include a bond he cannot afford that was set without considering his ability to pay. He argues that the Equal Protection Clause, the Due Process Clause, and the Immigration and Nationality Act require immigration judges in bond hearings to consider both an immigrant detainee’s ability to pay and alternative conditions of release. The amicus brief reviews evidence from the criminal pretrial system to demonstrate that nonmonetary alternatives to detention successfully address the goals of assuring a defendant’s appearance in court and protecting public safety, without overburdening individual liberty. It also reviews the ways in which detention impairs case outcomes, and long-term outcomes for individuals, unrelated to the merits.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff

Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond. 

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellee.

Argument: The Davidson County Criminal Court had jurisdiction to evaluate Mr. Abdur’Rahman’s motion to re-open his post-conviction petition, which gave it the inherent power to preside over a settlement of his post-conviction case. Due Process, principles of contract law, and economic efficiency require Mr. Abdur’Rahman’s settlement agreement to be specifically enforced. Under agency law principles, the District Attorney General had the actual and apparent authority to settle Mr. Abdur’Rahman’s post-conviction case. District Attorneys General, duly elected by the public in their district, are in a superior position to broker settlements in post-conviction capital cases. Troubling equal protection issues are raised in a system where the State Attorney General can appeal some post-conviction settlements but allow others to stand.

Brief of Amicus Curiae, Office of the Ohio Public Defender [and the National Association of Criminal Defense Lawyers] in Support of Appellant, David C. Kinney, Jr.

Argument: The prohibition in R.C. 2953.08(D)(3)--which is entirely unique to Ohio--is most accurately understood as a legislative oversight with severe unintended consequences. But even if not, it is unconstitutional on both cruel-and-unusual-punishment and equal-protection grounds. Amici Curiae urge this Court to provide meaningful appellate review of sentences for aggravated murder in Ohio.

Brief Amici Curiae Roderick and Solange MacArthur Justice Center, National Association of Public Defense, National Legal Aid and Defender Association, and National Association of Criminal Defense Lawyers in Support of Petitioner.

Argument: The District Court's order denying necessary funds constitutes denial of Mr. Christeson's 18 U.S.C. § 3599 right to capital habeas counsel. Summary denial of adequate funds for federal capital habeas representation deprives death-sentenced defendants due process and equal protection of law. Requiring capital post-conviction counsel to proceed without sufficient support for time-intensive legal work, mitigation investigation, and forensic experts perpetuates deficient, unethical representation. Summarily stopping capital counsel from doing their jobs as ordered by the United States Supreme Court amounts to a callous abuse of discretion that threatens the integrity of the entire justice system.

Brief Amicus Curiae National Association of Criminal Defense Lawyers, in support of defendants-appellants.

Argument: The Eighth Amendment prohibits excessive purposeless punishments now rejected in American laws and practices, as are pre-FSA crack sentences. Society’s standards reflected in modern legislation and practices demonstrate a national consensus against pre-FSA crack sentences. There is no evident legitimate penological justification for preventing only less serious, low quality crack offenders from being eligible for sentencing modification of pre-FSA sentences under 18 U.S.C. § 3582(c)(2). The sentence modification provisions of 18 U.S.C. § 3582(c)(2) and Guideline policy statements provide an effective and appropriate means to address and remedy the Eighth Amendment concerns in this case. For the foregoing reasons, the Eighth Amendment provides support for the Blewett panel ruling, and this Court need not and should not order rehearing en banc of that decision.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellant Brian Davis.

Argument: By 1995 Congress had overwhelming evidence that the 100:1 crack/powder cocaine sentencing ratio disproportionately impacted African Americans and was the principal cause for the widening gap in the length of incarceration for African American and white offenders. Nonetheless, in 1995, Congress rejected proposed equalization and left the 100:1 ratio intact despite its knowledge of the ratio’s discriminatory impact and without suggesting any rational basis for preserving the ratio. Congress’s 1995 reaffirmation of that ratio violated equal protection. It fails under strict scrutiny and fails under rational basis review. And continuing to enforce sentences imposed under the 100:1 ratio will erode public confidence in the judicial system and may undermine the effective administration of justice. This Court has not addressed in a published opinion whether Congress’s 1995 decision to reaffirm the 100:1 ration violated equal protection. NACDL urges the Court (i) to reverse the District Court’s decision holding that Congress did not violate equal protection by rejecting the Commission’s proposed 1:1 ratio and (ii) to remand the case.

Motion for Leave to File Brief as Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: Removing barriers to the effective administration of justice has long been a priority for this court. The high costs imposed on the wrongfully accused are a barrier to the effective administration of justice. When the burden is too great on the innocent, Americans pick up the tab. Jails are not free. Taxpayers will pay more to jail the innocent than the cost of pre-trial release. The impact of pre-trial detention has an economic ripple effect. Collateral consequences of pre-trial detention erode the administration of justice.

Brief of Amici Curiae The Center for HIV Law and Policy, The American Academy of HIV Medicine, GLBTQ Legal Advocates and Defenders, GLMA: Health Professionals Advancing LGBT Equality, Human Rights Campaign, The National Association of Criminal Defense Lawyers, The National Center for Lesbian Rights, The Office of the Ohio Public Defender, and Treatment Action Group on Behalf of Appellant Orlando Batista.

Argument: R.C. 2903.11(B)(1) ("The Act") violates the constitutional guarantee of equal protection. Equal protection forbids arbitrary, irrational classifications. The Act singles out people living with HIV for differential treatment. The Act cannot survive rational basis review. The Act's classification is arbitrary because it is over-inclusive. HIV-specific criminal laws are empirically proven to have no effect on the spread of HIV. Criminalization of nondisclosure is counterproductive. The absence of any rational basis for the Act suggests unlawful animus. The Act violates prohibitions against discrimination on the basis of disability.

Memorandum in Support of Jurisdiction of ACLU of Ohio Foundation, Inc., Center for HIV Law and Policy, Ohio Association of Criminal Defense Lawyers, Ohio Public Defender, Cuyahoga County Public Defender, National Association of Criminal Defense Lawyers, Center for Constitutional Rights, National Center for Lesbian Rights, Human Rights Campaign, GLBTQ Legal Advocates and Defenders (GLAD), National LGBTQ Task Force, Gay and Lesbian Medical Association, American Academy of HIUV Medicine, Treatment Action Group, Nueva Luz Urban Resource Center as Amici Curiae in Support of Appellant.

Argument: R.C. 2903.11(B)(1) violates the Equal Protection Clauses of the United States and Ohio Constitutions. R.C. 2903.11(B)(1) violates the Free Speech Clauses of the First Amendment and of Section 11, Article I, Ohio Constitution. R.C. 2903.11(B)(1) violates prohibitions against discrimination on the basis of disability.

Brief of Amicus Curiae The National Association of Criminal Defense Lawyers in Support of Contemnor-Appellant.

Argument: The Circuit Court's application of the Illinois rules deprives indigent clients of their fundamental right to conflict-free counsel solely on the basis of financial status in violation of the Due Process and Equal Protection Clauses of the federal and state Constitutions. The right to conflict-free counsel is a fundamental constitutional right. Fundamental constitutional rights may not be denied bases on an inability to pay. The failure to apply similar conflict of interest standards to clients of privately retained attorneys and clients of the Cook County Public Defender's office deprives the Public Defender's clients of their fundamental right to conflict-free counsel. African-American and Latino individuals are likely to bear the brunt of the constitutional violation at issue here.