Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
On June 21, the U.S. Supreme Court held that defendants who committed a cocaine offense before the Fair Sentencing Act of 2010 went into effect, but who were sentenced after its effective date, are entitled to the benefit of the law’s reduced sentencing provisions. The case, Dorsey v. United States, No. 11-5683, was consolidated out of two separate appeals from the U.S. Court of Appeals for the Seventh Circuit. The Act greatly reduced the overall sentencing disparity between crack cocaine and powder cocaine, and raised the threshold amounts of crack required to trigger mandatory minimum sentences. NACDL’s amicus curiae brief in Dorsey was co-authored by Jeffrey Green, a partner at Sidley Austin LLP, Washington, D.C.; Peter Goldberger of Ardmore, Pa.; Clayton Northouse, also of Sidley Austin; Sarah O’Rourke Schrup, of the Northwestern University Supreme Court Practicum, Chicago; and S. David Mitchell, of the University of Missouri School of Law.
In Southern Union Co. v. United States, No. 11-94, also decided on June 21, the Court interpreted the right to have any fact that would determine a criminal fine be found by the jury to be proven beyond a reasonable doubt. In an opinion by Justice Sonya Sotomayor, the Court held 6-3, per its prior decision in Apprendi v. New Jersey, that the same protections for other forms of punishment apply to criminal fines. This decision will have a significant impact on corporate defendants who cannot be imprisoned because of their noncorporeal nature but still face significant sanctions. The joint amicus curiae brief filed by the U.S. Chamber of Commerce and NACDL in Southern Union was authored by Benjamin C. Block and Mark D. Herman, of Covington & Burling LLP, Washington, D.C., and was cited favorably in the Court’s majority opinion for its argument that “exempting criminal fines from Apprendi makes innocent defendants more likely to plead guilty” in plea bargains rather than “roll the dice” and assert their right to a jury trial.
The U.S. Supreme Court struck down most of Arizona’s immigration law June 25, but left it for the state courts to decide whether a surviving provision can be enforced lawfully or will be exploited to abuse the rights of U.S. citizens and residents. Arizona Gov. Jan Brewer claimed victory at a news conference, stating that “the heart” of S.B. 1070, Section 2(B), will now be implemented by state law enforcement. Section 2(B) is the “stop and check” provision of the law that NACDL and the Arizona Attorneys for Criminal Justice criticized in an amicus curiae brief filed with the Court in March. The brief was authored by David J. Euchner of the Pima County Public Defender’s Office in Tucson. The case is Arizona v. United States, No. 11-182.
In another case decided June 25, the Court ruled that mandatory sentences of life without parole for juveniles convicted of murder are cruel and unusual. “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Elena Kagan wrote for the majority in Miller v. Alabama, No. 10-9646. The New York Times reported that as many as 2,000 offenders may be serving mandatory life sentences for crimes committed before they were 18 years of age.
On June 28, the final decision day of the term, in a plurality opinion authored by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, the Supreme Court in United States v. Alvarez, No. 11-210, affirmed the Ninth Circuit Court of Appeals and found that “[t]he Stolen Valor Act infringes upon speech protected by the First Amendment[,]” and as such it is unconstitutional. The Stolen Valor Act of 2005 (18 U.S.C. § 704(b)) made it a federal crime to lie about having received military decorations or medals. In a separate opinion, Justice Stephen G. Breyer and Justice Elena Kagan concurred in the judgment of the plurality while not resting that conclusion “upon a strict categorical analysis.” Instead, Justices Breyer and Kagan found that the Act fails intermediate scrutiny but might survive constitutional muster were it to be redrafted as a “more finely tailored statute.”
NACDL filed an amicus curiae brief in Alvarez arguing that the Stolen Valor Act’s false claims provision, 18 U.S.C. § 704(b), is unconstitutionally overbroad because it punishes speech protected under the First Amendment such as innocent mistakes, harmless misrepresentations, purely private speech, jokes, satire, and dramatic claims. Moreover, NACDL argued that the offense lacks a criminal intent, or mens rea, requirement and the supposed harm it protects against is not supported by a substantial government interest and, as such, is a classic example of federal overcriminalization. That brief was authored by Michael V. Schafler and Jeffery M. Chemerinsky, Caldwell Leslie & Proctor PC, Los Angeles, Calif., and Jeffrey L. Fisher of Stanford, Calif.
NACDL’s amicus curiae briefs are available on NACDL’s website at www.nacdl.org/amicus.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.