NACDL - National Association of Criminal Defense Lawyers

NACDL’s top line recommendation on data-driven policing tools is that police departments must not utilize data-driven policing technologies because they are ineffective; lack scientific validity; create, replicate and exacerbate “self-perpetuating cycles of bias”; hyper-criminalize individuals, families, and communities of color; and divert resources and funds from communities that should be allocated towards social services and community-led public safety initiatives.

NACDL has serious concerns with many of the changes in the proposed rule Inmate Discipline Program: Disciplinary Segregation and Prohibited Act Code Changes, 89 FR 6455. …the proposed regulations provide no protections for people in administrative segregation and other forms of solitary confinement. Second, the creation and elevation of disciplinary violations … will lead to arbitrary and capricious enforcement and further erode public trust in the agency. Third, the proposed ban on social media accounts … impedes a critical component of successful reentry...

Below are NACDL's comments on Executive Order 14074 on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety. The policing technologies at issue in the Executive Order create serious harms for individual criminal defendants, their lawyers, and the criminal legal system more broadly. In this comment, NACDL aims to highlight the serious dangers that these technologies pose and propose recommendations for mitigating those dangers.

Back on November 4, 2022, NACDL’s then President Nellie L. King wrote to Director Peters to amplify the association’s call for (1) permitting privileged and unmonitored email communications between attorneys and clients in both pretrial and post-conviction settings and (2) for a “help desk” to facilitate scheduling of privileged attorney-client telephone calls.

We have seen the DOJ Advisory Group’s July 20, 2023, Report and Recommendations... In general, we think many of the recommendations are sensible. But some of them are troubling.

NACDL submits this comment in response the Bureau of Prisons’ Proposed rule that would significantly change the regulations regarding the Inmate Financial Responsibility Program. We oppose these proposed changes, which are harsh and inequitable and will harm not only people who are incarcerated, but their families and dependents.

We appreciate the opportunity to comment in response to the Department of Justice’s recent Proposed Rule interpreting the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to permit individuals placed on home confinement during the COVID-19 emergency to remain on home confinement once the emergency ends. Commenters include attorneys who represent people impacted by this Proposed Rule, non-profit organizations that work with them, and organizations dedicated to the rule of law.

Letter with NACDL New York affiliate NYSACDL to Department of Justice leadership regarding unsafe, inhumane, and unconstitutional conditions persisting at the Rikers Island Correctional Facility.

Letter to Attorney General Merrick Garland regarding former Attorney General William Barr's ruling in Matter of Thomas and Matter of Thompson, 27 I. & N. Dec. 674 (AG 2019) changing DOJ and DHS policy so state courts can only affect immigration sentencing if related to underlying criminal proceedings and not the immigration case.

Comments with FAMM to Deputy Attorney General Lisa Monaco regarding U.S. Attorney offices requiring waiver of the right to seek compassionate release during plea negotiations.

Comments to the Department of Justice National Security Division responding to the department’s request for suggestions on clarifying and modernizing the implementing regulations of the Foreign Agents Registration Act of 1938 (FARA).

Comments to the Bureau of Prisons Office of General Counsel regarding a proposed rule to apply good-time credits earned under First Step Act provisions to individuals in BOP custody with convictions under the D.C. Code.

Coalition letter to Department of Justice leadership regarding the need to reevaluate a January 2021 memo from the Office of Legal Counsel that outlined a plan to return to federal prison people who had been released to home confinement under CARES Act (H.R. 748, 2020) provisions due to the COVID-19 pandemic, and proposing solutions to assured logistical issues and unfairness should the memo be heeded as written and currently interpreted.

NACDL Counsel and Director of First Step Act Resource Center Elizabeth A. Blackwood’s written statement to the Department of Justice upon NACDL’s participation in a stakeholder listening session regarding realization of reforms outlined in the FIRST STEP Act (S. 756), signed into law in December 2018 and still in the process of being implemented.

NACDL President Chris Adams’ comments to Attorney General Merrick Garland regarding the need for public defenders and appointed counsel for people facing incarceration in tribal courts, for consideration by the Legal Aid Interagency Roundtable.

Coalition letter to Attorney General Merrick Garland regarding the risks of contracting COVID-19 for those living and working in carceral facilities, and the release options available to reduce that risk through compassionate release, home confinement, and other CARES Act-authorized release programs (H.R.748, 2020).

Comments submitted to the Federal Bureau of Prisons with FAMM and the Justice Action Network regarding a proposed rule on earned time credits authorized by the FIRST Step Act of 2018 (S. 756).

As a criminal defense organization, we do not profess to possess expertise in policing practices insofar as those practices do not directly intersect with the criminal justice system. But many police practices do have a direct impact on the treatment of accused persons, the degree to which their cases are litigated justly, and case outcomes. Accordingly, we offer a few key insights, which we hope will find their way into the Commission’s recommendations.

Coalition letter to Director of the Federal Bureau of Prisons Michael Carvajal regarding the lack of demographic information included in its daily reports of systemwide COVID-19 cases.

Coalition letter to Attorney General William Barr regarding building on the Department of Justice's response to the COVID-19 pandemic in federal facilities, and the potential to lead states to do the same.

Comments to Attorney General William Barr regarding the Risk and Needs Assessment System in the implementation of the First Step Act of 2018 (S. 756).

Letter to Attorney General William Barr regarding the Department of Justice's lacking implementation of the FIRST Step Act of 2018 (S. 756).

The undersigned organizations write to express concern over the Justice Department’s demand for information associated with a website used to organize protests on Inauguration Day. While the government, in the face of mounting public pressure, has significantly narrowed its initial demand for data on every individual who visited the site, we remain concerned that the government made its sweeping request in the first place – and that it continues to maintain that this request was legal and appropriate.

The National Association of Criminal Defense Lawyers (NACDL) commends the Department of Justice (DOJ) for its previous efforts to improve the reliability of forensic evidence in the criminal justice system. NACDL submits this comment to urge the DOJ to continue to advance and improve the reliability of forensic science as outlined below, including: reinstatement of a national commission on forensic science; implementation of a Forensic Science Discipline Review; and development of scientific standards for testimony and reports with input from independent scientists and statisticians.

The National Association of Criminal Defense Lawyers (NACDL) commends the Department of Justice (DOJ) for developing proposed uniform standards for testimony and lab reports generated by the Federal Bureau of lnvestigation (FBI), the Bureau of Alcohol Tobacco and Firearms and Explosives, and the Drug Enforcement Administration. NACOL further commends the DOJ for releasing these standards for public comment, particularly for comment from the scientific community.

NACDL has worked collaboratively with the Department of Justice, the Federal Bureau of Investigation, the Innocence Project, and the pro bono law firm Winston & Strawn on the FBI Microscopic Hair Comparison Analysis Review since 2012, and, as a result, NACDL has seen firsthand how pervasively examiner opinions exceeded the limits of science in hair comparison cases. Thus, this initiative by DOJ, along with its commitment to a process that is “deliberative” and “transparent” is most welcome. In the spirit of that commitment, NACDL offers these comments.

NACDL commends the DOJ for developing uniform standards for testimony and lab reports generated by the FBI, the ATF and the DEA. NACDL further commends the DOJ for releasing these standards for public comment, particularly for comment from the scientific community. … Thus, this initiative by DOJ, along with its commitment to making both efforts “deliberative” and “transparent” is most welcome. In the spirit of that commitment to a deliberative and transparent process, NACDL offers these comments on the proposed “Uniform Language for Testimony and Reports.” 

NACDL commends the Department of Justice for conducting an independent root cause analysis on testimonial errors by microscopic hair analysts and for conducting a “quality review” of other disciplines to see if similar “testimonial statements” were made in other comparison disciplines. NACDL has … seen firsthand how pervasively examiners exaggerated their conclusions in hair comparison cases. Thus, this initiative by DOJ, along with its commitment to making both efforts “deliberative” and “transparent” is most welcome.

After reviewing the “Recommendations to the Attorney General Regarding the Use of the Term ‘Reasonable Scientific Certainty’” (Recommendations), the NACDL wholly agrees with and supports all three recommendations of the subcommittee which, taken together, would end the use of the terms “to a reasonable degree of scientific certainty” or “to a reasonable degree of (discipline) certainty” by those employed and appearing on behalf of the Department of Justice. 

We represent a wide range of privacy and human rights advocates, technology companies, and trade associations that hold an equally wide range of positions on surveillance reform. Many of us have differing views on exactly what reforms must be included in any bill reauthorizing USA PATRIOT Act Section 215, which currently serves as the legal basis for the NSA’s bulk collection of telephone metadata and is set to expire on June 1, 2015. Our broad, diverse, and bipartisan coalition believes that the status quo is untenable and that it is urgent that Congress move forward with reform.

We write today to urge the Department of Justice (DOJ) to quickly complete an updated Privacy Impact Assessment (PIA) for the Federal Bureau of Investigation’s Next Generation Identification System (NGI) as part of a broader effort to examine the goals and impact of NGI. The previous PIA on NGI’s face recognition component dates back to 2008. Since that time the program has undergone a radical transformation—one that raises serious privacy and civil liberties concerns.

We write to urge you not to renew the Section 215 Bulk Telephony Metadata Program when the current order expires on June 20, 2014. The program is not effective. It should end.

We submit these comments on the interim rule, published by BOP on December 5, 2013 … on sentence reduction for extraordinary and compelling reasons. The first provision codifies existing practice by which, when considering a prisoner for reduction in sentence, the General Counsel solicits the opinion of the United States Attorney in the district in which the prisoner was sentenced. The second provision provides that the Bureau’s “final decision is subject to the general supervision and direction of the Attorney General and Deputy Attorney General.” Neither provision should be adopted.

NACDL welcomes the establishment of the National Commission of Forensic Science and is hopeful that this commission will provide leadership in enacting the reforms recommended by the National Research Council in 2009. … In submitting this letter, NACDL encourages the Commission to prioritize the assessment of the existing research in the forensic disciplines, to clarify where further research is needed, and to determine what limitations should be placed on the conclusions that may be reliably drawn by practitioners because of gaps in a discipline’s foundational research.

Letter from NACDL Executive Director Norman L. Reimer and NACDL affiliates' leadership to FBI Director James Comey regarding the FBI's policy on recording custodial interrogations, especially for those suspected of felony offenses.

NACDL undersigned a letter to the U.S. government on July 18, 2013 urging greater transparency around national security-related requests by the US government to Internet, telephone, and web-based service providers for information about their users and subscribers.

NACDL undersigned a letter on July 8, 2013 to Attorney General Eric H. Holder, Jr. and Michael E. Horowitz to ask that the Department of Justice make public any findings by the Department’s Office of the Inspector General (OIG) regarding the collection of Americans’ telephone records under Section 215 of the Patriot Act.

NACDL President Lisa Wayne's comments to the Department of Justice Office of Legal Policy regarding a proposed rule that would allow states to limit federal review of capital post-conviction cases.

Coalition letter to Department of Justice Criminal Division Assistant Attorney General Lanny Breuer and Securities and Exchange Commission Director of Enforcement Robert Khuzami regarding enforcement of and forthcoming guidance for the Foreign Corrupt Practices Act (FCPA).

NACDL President Jim Lavine's comments to the Department of Justice Office of Legal Policy regarding a proposed rule that would allow states to limit federal review of capital post-conviction cases.

Letter to Attorney General Eric Holder regarding responses to and actions concerning prison rape.

We write to express our concern about your recent call to restrict the constitutional rights of individuals in the United States suspected of terrorist activity by seeking to codify or expand the “public safety exception” to Miranda v. Arizona. Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.

Letter to Attorney General Eric Holder regarding responses to and actions concerning prison rape.

Letter with Families Against Mandatory Minimums to the Bureau of Prisons general counsel regarding proposed changes to facility and reentry placement, and community programs.

Comments to the Department of Justice Office of Justice Programs regarding proposed regulations in capital cases to address competent and well-funded counsel, post-conviction review, wrongful conviction, and racial disparity issues.

Comments to the Department of Justice Office of Justice Programs SMART Office regarding sex offender registration and community notification.

Comments to the Department of Justice regarding implementation of provisions of the Adam Walsh Act to affect individuals with past sexual offense convictions.

Letter to the Federal Bureau of Prisons general counsel regarding proposed sentencing reductions for medical reasons.