That Is ‘Zero Tolerance’?

The concept of “zero tolerance” within the criminal justice system is nothing new. Zero-tolerance policies allow for a quick and easy method of criminalization that is contrary to an effective and moral criminal justice system.

Coalition letter to California Assemblymember Ed Chau regarding disparities and discrimination, abuse, accuracy, information sharing, and other issues in the proposed bill AB 2261 on facial recognition technologies.

Amy Kimpel and James Chavez explain how to get non-U.S. citizen clients (both those with legal status and those who are undocumented) out of custody and how to keep them out. Their article will inspire defense advocates to fight for pretrial release for non-U.S. citizen clients and will provide legal ammunition for the battle.

of Drug Offenses

When a criminal defense attorney sees a drug or drug-related charge alleged against a noncitizen client, the attorney should immediately think of immigration consequences. The main defense strategies for drug cases are as follows, in order of preference: (1) avoiding a drug conviction entirely through dismissal or negotiation; (2) if a drug conviction is unavoidable, avoid an aggravated felony; (3) plead to a substance that is not federally controlled; or (4) create a vague record of conviction as to the substance if the state law is overbroad.

The Latest Manifestation of NACDL’s Commitment to Reform and a Look Back at the 41 Reports That Preceded It and a Preview of the Next 3

Congress ostensibly created the “S” Visa program to promote national security by incentivizing foreign nationals to provide information to deter terrorist attacks. Does the program work as intended?

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Comments to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Letter to the U.S. Sentencing Commission regarding proposed amendments to the sentencing guidelines.

Comments to the U.S. Sentencing Commission on proposed 1997 Emergency Amendments.

Letter to the U.S. Sentencing Commission regarding proposed 1997 Amendments.

Coalition letter to members of the House regarding legislation that would redefine "criminal gang" to include people not involved in those activities yet in danger of deportation and other immigration penalties (see Criminal Alien Gang Member Removal Act (H.R. 3697, 2017)).

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).

Amicus Brief in support of Defendant-Appellant’s petition for rehearing en banc by the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies.

Argument: In a split decision, the Tenth Circuit (per Ebel, J.) affirmed on plain error review a conviction under 18 U.S.C. § 922(g)(5) (illegal or unlawful alien in possession of a firearm) notwithstanding the fact that during the plea colloquy the judge failed to inform the defendant of two essential elements of the crime:  (1) he had to know his status as a prohibited person; and (2) he was illegally or unlawfully in the United States. There’s a spirited dissent by Judge Bacharach. Although the panel concluded Mr. Perez’s constitutional rights were violated due to these failings when he accepted the plea agreement, the majority nevertheless decided Mr. Perez had not established plain error. The amicus brief argues that the majority erred in not finding plain error pointing out that the evidence of Mr. Perez’s knowledge of his prohibited status was weak and that there was ample record support for this potential defense. The majority instead engaged in speculation about why Mr. Perez accepted the plea agreement (to avoid mandatory minimum charges) when the meagre factual record suggested instead that Mr. Perez did not accept the plea agreement to avoid these charges. Rather, the record is clear that Mr. Perez sought to avoid the trial penalty and to transfer out of the onerous conditions of pretrial detention, which he had suffered for more than 18 months. As a result of the plain error in this case, Mr. Perez is entitled to have his conviction vacated. 

Letter with FAMM to the House Judiciary Committee regarding proposed immigration reform that strips the mens rea (intent) requirement for some offenses, triggering mandatory minimum sentences, as addressed in the Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 2431, 2017).