Garners Broad Support with the Launch of a National Reform Effort

The “trial penalty” refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the longer sentence a defendant receives if convicted at trial. The manipulation of the potential penalty creates pressure to waive the right to a trial. With the launch of the Trial Penalty Report, NACDL hopes to begin a reform movement.

We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. What is the reality? We have abandoned the system of public jury trials established in the Constitution and Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power.

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies in Support of Defendant-Appellant’s Petition for Rehearing En Banc. 

Argument: In violation of his constitutional rights guaranteeing notice, due process, and trial by jury, Melvyn Gear was convicted of possessing a firearm while holding a non-immigrant visa because the jury was not instructed on that most subjective of the crime’s elements:  knowing possession.  Contrary to four circuits around the country, the Ninth Circuit panel applied a cramped and compressed plain error standard that failed to properly protect the surpassing constitutional rights at stake. The brief amici was filed to bring those decisions and their reasoning to the Ninth Circuit’s attention.

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.

Brief For Amicus Curiae The National Association Of Criminal Defense Lawyers In Support Of Petitioner.

Argument: The Armed Career Criminal Act’s “occasions” requirement has led to a deluge of unconstitutional factfinding by sentencing courts. The Supreme Court has repeatedly made clear that under the Sixth Amendment, only a jury—not a judge—may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. But in analyzing whether a defendant’s three predicate offenses occurred on “occasions different from one another,” as they must have to support a penalty under the statute, lower courts around the country routinely make detailed factual findings regarding the timing, location, and conduct underlying each prior conviction, with no apparent jury involvement. The Supreme Court has repeatedly made clear in other statutory contexts that such findings are unconstitutional. Because there is no reason why the Sixth Amendment would apply any differently to the “occasions” requirement, it is likely that every sentence imposed under the Armed Career Criminal Act has been imposed unconstitutionally.

Brief for Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”) in Support of Defendants-Appellants.

Argument: The District Court impermissibly directed a verdict on the existence of an official act. The jury decides whether the defendant is guilty of each contested element of the charged offense. The District Court usurped the jury’s exclusive role. Under Gaudin and McDonnell the question of whether alleged conduct constitutes an official act is a mixed question of law and fact reserved for the jury. Neither Fattah Nor Hastie justify a directed verdict on the official act element. That different juries may reach different verdicts based on similar facts is inherent in the jury system—it is not a basis to abrogate the jury’s right to render a verdict. The District Court’s error if uncorrected will impact other criminal defendants. The District Court’s error warrant a new trial. A directed verdict for the government on a disputed element can never be harmless. The improper directed verdict on the official act element also negates the convictions on the Section 666 charge.

Brief of National Association of Criminal Defense Lawyers, Cato Institute, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas, Due Process Institute, and Texas Public Policy Foundation as Amici Curiae in Support of Defendant-Appellant and Reversal. 

Argument: The trial penalty is forcing virtually all criminal defendants to forgo their trial rights. The trial penalty erodes key foundations of the criminal justice system. The trial penalty fundamentally undermines the Sixth Amendment right to a jury trial. The trial penalty compromises the integrity of the criminal justice system. Courts should carefully scrutinize sentencing recommendations that appear to penalize defendants for exercising their right to a jury trial. 

Amicus curiae brief of the Chamber of Commerce of the United States and the National Association of Criminal Defense Lawyers in support of the petitioner, Southern Union Co.

Argument: In cases where the defendant is a corporation, the penalty of conviction is necessarily a fine, because a corporation cannot be incarcerated; unlike most criminal cases, the fine is not merely part of or an alternative to the penalty, it is the penalty. The court of appeals erred in ruling that Apprendi v. New Jersey, which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt, does not apply to criminal fines.

Amicus curiae brief of the Chamber of Commerce of the United States and the National Association of Criminal Defense Lawyers supporting grant of the petition for certiorari.

Argument: The court of appeals erred in ruling that Apprendi v. New Jersey, which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and found beyond a reasonable doubt, does not apply to criminal fines.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Argument: The majority of American citizens who interface with the criminal justice system do so through a vast web of petty offenses – such as driving under the influence, possession of marijuana, simple assault – for which the Constitution does not guarantee a jury trial. When such minor non-jury triable misdemeanor convictions are used as elements of subsequent serious felony offenses, the defendant is denied his right to have a jury determine each essential element of this felony offense in violation of the Sixth and Fourteenth Amendments