The Foundation for Criminal Justice (FCJ) stands at a crossroads in the history of America’s criminal justice system. A not-for-profit charitable organization that pursues key criminal justice reforms, the FCJ seeks a fairer, more humane criminal justice system through a wide range of educational and reform projects. Today, it faces unprecedented opportunities to create a better criminal justice system. Likewise, it opposes unprecedented threats to everyday liberties posed by abuses of the criminal law.
Supported Projects and Highlights
Gideon at 50 and the Right to Counsel
The Supreme Court of the United States held in Gideon v. Wainwright that the right to counsel guaranteed by the Sixth Amendment applies regardless of whether a defendant can afford to pay an attorney. The FCJ celebrates the 50th anniversary of that landmark decision.
As part of its efforts to celebrate Gideon at 50, the FCJ hosted a July, 2012 event in San Francisco that honored leaders who have dedicated their careers to upholding the right to counsel. The purpose of the event, which featured remarks by the president of the ABA, was to raise earmarked funds to support right to counsel initiatives, including training and education for indigent defense providers and reform initiatives.
In partnership with the National Association of Criminal Defense Lawyers (NACDL), the FCJ continues efforts to support reform in several states. It has awarded grants to foster reform such as a grant in New York to support litigation in conjunction with the Hurrell-Harring case, and a grant to Washington & Lee College of Law to support an academic conference on the state of Gideon at 50. It also supports other convenings, conferences and panels on the importance of the right to counsel, in addition to supporting NACDL's Indigent Defense Reform and Litigation Fund. FCJ support enabled the release of two major reports chronicling America’s overburdened misdemeanor court system, which is a virtual assembly line for guilty pleas where bail is used as ransom to extract guilty pleas, defendants are induced to waive counsel, and public defense counsel labor under staggering caseloads. The reports, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, and Three Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts, are both available at www.nacdl.org/reports.
The FCJ intends to support projects in the coming year to increase the availability and quality of counsel at the earliest phase of the criminal case - the initial bail hearing - and will develop and disseminate resources to foster enhanced advocacy to challenge bail and detention policies that unnecessarily incarcerate low-risk accused persons and use bail as ransom to extract mass guilty pleas. The FCJ will work to implement two resolutions recently adopted by NACDL that call for access to counsel as soon as a criminal conviction may be entered or liberty is at stake and challenging the practice of money bail.
Restoration of Rights and Status After Conviction
The Foundation for Criminal Justice supports NACDL’s Task Force on the Restoration of Rights and Status After Conviction. The Task Force is currently holding hearings across the United States to look at the legal mechanisms used to restore rights and status, such as pardons, expungements, and certificates of good conduct. Following these hearings, the Task Force will produce a report identifying best practices, and specific legislative and policy proposals to facilitate restoration of rights and status after completion of sentence.
Read more about this project on NACDL’s website.
Eliminating Racial and Ethnic Disparities
The FCJ co-sponsored a recent conference on racial and ethnic diversity in the criminal justice system, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System. The conference brought together criminal justice experts – prosecutors, judges, scholars, defense attorneys, probation officials, community leaders, and formerly incarcerated advocates – to identify innovative practices that can be broadly replicated to redress the incontestable fact of racial and ethnic disparity in the criminal justice system. A conference report will be published in The Champion magazine and papers commissioned for the conference will be published in an NYU Law publication.
Overcriminalization and Prosecutorial Misconduct
The FCJ steadfastly opposes the overcriminalization of conduct and prosecutorial overreach. The nation's addiction to criminalization backlogs the judiciary, overflows prisons, and forces innocent individuals to plead guilty by making their constitutional right to a trial a prohibitively expensive and risky exercise. The FCJ, with NACDL, has marshaled allies from across the political spectrum to push back.
The FCJ sponsored a June 2012 forum and panel discussion entitled Prosecutorial Misconduct, Legal Ethics and Fair Dealing: Does the Criminal Justice System Need Reform? The panel focused on the extraordinary misuse of government power to create an expansive, wasteful and inherently unjust system, as well as on specific high-profile instances of prosecutorial misconduct. It discussed the problem of overcriminalization, the abuse of the grant jury system, and the systemic problem of prosecutors suppressing evidence that is favorable to defendants.
The FCJ actively supports efforts to require prosecutors to honor their obligation under Brady v. Maryland to share evidence in their files that is favorable to defendants. With support from the FCJ and others, NACDL is presently studying how the standards that prosecutors use to decide what evidence to give to defendants vary across circuits and individual courts. The forthcoming study will be published in a report that will give tremendous insight into how Brady is being used by prosecutors, and it will be an invaluable tool for those who seek to improve discovery in the criminal justice system.
With the support of the Foundation for Criminal Justice, NACDL undertook a study to understand the impact of grand jury reform on the criminal justice system. Evaluating Grand Jury Reform in Two States: The Case for Reform summarizes in-depth research into the impact of grand jury reform in New York and Colorado. The report considers the experiences of prosecutors, defense lawyers and retired judges, and illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury.
Preserving the Fourth Amendment in the Digital Era
The FCJ is committed to preserving the Fourth Amendment and privacy rights from an onslaught of government overreach made possible by innovative surveillance technology. Its support has made possible myriad research, education, reform, and other projects in this area. Some recent and pending projects include:
- Research on law enforcement access to electronic third party records intended to guide defense litigation strategies and recommendations for reform;
- Research into the implications for privacy and liberty posed by the advent of familial DNA testing, including whether familial DNA testing comports with constitutional principles, and whether corrective action is necessary to challenge or limit this investigative technique, to be released in a report in early 2013;
- Litigation designed to protect professionals, students and tourists from the unconstitutionally suspicionless seizure of their laptop computers border crossings;
- Amicus efforts that condemn warrantless GPS-tracking of citizens’ everyday movements;
- Upcoming educational seminars and symposia to enhance the capacity of front line lawyers to effectively litigate cutting edge search and seizure issues in an age of rapidly advancing technology, as well as to advance academic research into the intersection of new technologies and the Fourth Amendment;
- Development of an upcoming online, one-stop-shop resource center for issues related to unmanned aerial vehicles; and
- A panel discussion at the National Press Club on the use of canine searches, which raise serious long term implications for domestic privacy and the potential for law enforcement abuse of new technologies, especially those of dubious reliability.
Resources for Lawyers
The Resource Counsel Project at NACDL, made possible by initial support from the FCJ, provides access to technical assistance for, among others, court-appointed counsel, contract defenders, and solo and small firm defense attorneys. The goal of this project is to give all defense lawyers access to information and direct assistance on as range of critical topics from the basics of criminal procedure, to the cutting edge of substantive criminal law, like motions to challenge eyewitness identification procedures. The Resource Counsel has developed a broad, web-based technical assistance module for defense lawyers, as well as provided innumerable attorneys with direct technical assistance.
Having the resource counsel position has also permitted NACDL to obtain funding to train defense lawyers on a number of critical and topical issues. With support from the FCJ, NACDL coordinated a series of webinars to ensure that the criminal defense bar understands the implications of the Padilla v. Kentucky, Graham v. Florida, Miller v. Alabama, and Jackson v. Hobbs decisions. The trainings have been made available online without any charge, and remain available on demand, in an effort to reach the broadest possible audience. In addition, and with support from the Bureau of Justice Assistance, NACDL’s Resource Counsel has coordinated several national trainings that educate attorneys on litigating post-conviction innocence claims involving mainly flawed forensic evidence.
The Foundation for Criminal Justice is concerned about the impact of money in judicial elections on judicial attitudes toward criminal defendants. Too often, judges are attacked in elections as being “soft of crime.” The FCJ is concerned that these attacks compels judges to set extreme bail, and oversentence criminal defendants, among other things. NACDL wrote an amicus curiae brief on the link between judicial elections and overly harsh treatment of criminal defendants in the case of Caperton v. A.T. Massey Coal Co. That brief is available here.
To look more closely at this issue, the FCJ has provided funding to NACDL to work in the area of judicial independence. With this funding, NACDL recently co-sponsored and helped to organize a conference on judicial independence at DePaul College of Law. Speakers at the conference included Illinois Supreme Court Justice Thomas Kilbride and former Iowa Supreme Court Justice David Baker. More information on this event can be found here.
Padilla and the Future of the Defense Function
In Padilla v. Kentucky, the Supreme Court held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The decision is an important breakthrough because it formally recognizes that the sentence for a criminal offense necessarily extend beyond the conviction and the term of incarceration or parole to the critical civil consequences of the conviction. In holding defense lawyers accountable for explaining these civil consequences to their clients, Padilla represents a critical expansion of the role and duties of the defense lawyer not just with regard to immigration consequences, but more generally to the impact that the criminal case will have on the entirety of the client’s legal existence. The FCJ and NACDL have been at the forefront of efforts to fully understand the implications of Padilla and help the defense bar to implement its holding. FCJ Projects have included:
Convening on Padilla and the Defense Function
On June 20-21, 2011, the Foundation for Criminal Justice supported NACDL and the National Legal Aid and Defender Association (NLADA) as they co-hosted a convening of leading defense lawyers, law professors, and other stakeholders to discuss the impact of the Supreme Court’s decision in Padilla v. Kentucky, which recognized that the legal advice and assistance provided by defense counsel must go beyond the direct outcome of a criminal prosecution. To learn more about this event, click here.
Fordham Urban Law Journal on Padilla
In June, the FCJ and NACDL co-sponsored a convening that brought together criminal defense attorneys from across the country to discuss the Supreme Court’s recent decision in Padilla v. Kentucky and to examine the ways in which the decision will affect defense lawyers’ duties to advise their clients of the collateral consequences of criminal convictions. The discussions revolved around such pressing issues as consequences affecting immigration status and access to employment. The convening was documented in the Fordham Urban Law Journal, Volume 39, Issue 1. The volume includes the Report of the Conference, as well as the Keynote Address by New York Chief Judge Jonathan Lippman.
To view the Table of Contents, click here.
To obtain a copy of the Padilla issue, please email Daniel Weir at firstname.lastname@example.org.
Web-trainings on Complying with Padilla
Immediately after the Padilla decision, NACDL held a free online training to explain the decision to the defense bar and begin talking about how to comply. Since that time, NACDL has held a number of follow-up trainings online to help the defense bar effectuate the decision, including sessions on the immigration consequences of domestic violence cases, collateral consequences and drug offenses. These sessions remain available for viewing online, for free. To view the sessions, click here.
Representing Juvenile Defendants
The FCJ is also funding a number of NACDL projects designed to address sentencing reform after the Supreme Court’s decision in Graham v. Florida, which held that no juvenile defendant can be sentenced to life without parole for a non-homicide offense.
As part of this project, NACDL recently held a series of three online trainings aimed at individuals who represent juveniles in adult court.
Session One: Adolescent Development 101
Dr. Jennifer Woolard, Georgetown University
Marsha Levick, Juvenile Law Center
Session Two: Fighting Transfer – Adolescent Development and Venue Determinations
This session focused on fighting transfer or (where possible) direct file in adult court and how to advocate for transfer back to juvenile court.
Ali Pearson, State Public Defender Office in Maryland
Dr. Jennifer Woolard, Georgetown University
Session Three: Age as Mitigation – Adolescent Development and Criminal Sentencing
This session focused on sentencing advocacy and use of adolescent development to assert diminished culpability.
Cathryn Crawford, National Juvenile Defender Center
Dr. Jennifer Woolard, Georgetown University
The trainings were aired live over the internet and remain available for viewing online, on demand for free through NACDL’s online CLE library, here.
The FCJ has enabled NACDL to take a leading role in ensuring that fundamental constitutional principles are not compromised in the name of national security. The John Adams Project, an effort undertaken in collaboration with the American Civil Liberties Union, seeks to ensure that even those accused of terrorism are given fundamental procedural protections designed to ensure that only the guilty are convicted, including, and perhaps most importantly, access to competent defense counsel who are given the resources and information necessary to prepare their case. The American defense bar recognizes that ill-equipped military attorneys, with minimal capital defense experience and inadequate support resources, cannot adequately vindicate the principles of justice which, until recently, provided a beacon of hope for the entire world. The John Adams Project is providing civilian attorneys, including death penalty counsel, as well as investigators and mitigation experts, to each of the five individuals charged capitally with causing the deaths that occurred on September 11, 2001.
The FCJ and NACDL continue to provide expertise, consultation, and support to the military and civilian lawyers representing detainees charged in the military commissions. Likewise, the organizations continue to identify and challenge the deficiencies in the military commissions system, independently advocating with respect to individual cases as well as broad policy initiatives and reform proposals. FCJ support has enabled several critical contributions in this area, such as the development of an ethics opinion supporting attorney-client privilege that was requested by military lawyers involved in military commission cases, amicus briefs challenging efforts by the government to restrict access of detainees to their lawyers, upcoming media trainings, and more.
With support from FCJ, NACDL instituted a minority fellowship program in criminal defense law. The purpose of the fellowship is to increase diversity in the criminal defense bar by giving underrepresented populations an opportunity to gain experience in a criminal defense law practice. Under this program, NACDL is able to hire minority law fellows who spend eight weeks working in a criminal defense law practice at the offices of exceptional, experienced NACDL members. Over the first three years of the program, NACDL placed between two and five fellows each summer. Fellows actively intern in the assigned criminal defense law office and are also invited to participate in NACDL events and networking opportunities throughout the summer.
Grand Jury Reform
With the support of the Foundation for Criminal Justice, NACDL undertook a study to understand the impact of grand jury reform on the criminal justice system. On November 10, 2011, NACDL released a groundbreaking report on restoring and reforming the grand jury system-- Evaluating Grand Jury Reform in Two States: The Case for Reform. This report summarizes in-depth research into the impact of grand jury reform in two states – New York and Colorado. In conducting this study, researchers Erin Crites, Jon Gould and Colleen Shepard of the Center for Justice, Law & Society at George Mason University studied the experiences of prosecutors, defense lawyers and retired judges. The report illustrates how reforms such as having a witness’s lawyer in the grand jury room and requiring prosecutors to present exculpatory evidence to the grand jury are viewed by both sides of the courtroom as increasing the accuracy, effectiveness and legitimacy of the grand jury. In addition, as the report’s findings uniformly demonstrate, NACDL’s proposed grand jury reforms have no harmful effects.
To find more information and a copy of this report, click here.