Amicus Briefs Filed in 2012

The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.


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Arizona v. United States

Amicus curiae brief of Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers in support of the respondent, United States of America.

Argument: Arizona’s Senate Bill 1070 created new criminal offenses and new authorizations for police officers in Arizona to detain and arrest persons suspected of being in the United States illegally. Section 2 modified Ariz. Rev. Stat. § 11-1051(B) so that officers would be required to determine the immigration status of a person stopped, detained, or arrested, if there is a reasonable suspicion that the person is unlawfully present in the United States, and officers would be required to verify the immigration status of any person arrested prior to releasing the person. Section 3 created a new statute, Ariz. Rev. Stat. § 13-1509, creating a crime for the failure to apply for or carry alien registration papers. Section 5 created a new statute, Ariz. Rev. Stat. § 13-2928(C), creating a crime for an unauthorized alien to solicit, apply for, or perform work. Section 6 modified Ariz. Rev. Stat. § 13-3883(A)(5) to authorize warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. All of these portions of SB 1070 were enjoined by the District Court,2 and that order was affirmed by the United States Court of Appeals for the Ninth Circuit.

SB 1070 cannot be enforced without racially profiling Latinos in violation of the Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. SB 1070 is an unconstitutional “stop-and-identify” law that converts detentions into de facto arrests where officers rely on hunches and other impermissible factors in assuming that a person is in the country illegally. While not all Arizona law enforcement is unmindful of the state’s citizen’s Fourth and Fourteenth Amendment rights, systematic abuses of the law include Maricopa County’s “immigration sweeps” where the sheriff’s department conduct dragnet operations over large groups of people of Latino heritage and arrest first and ask questions later.

Clapper v. Amnesty International USA

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondents.

Argument: Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)-referred to here as Section 1881a - allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Two of the plaintiff-respondents in this case are criminal defense lawyers for whom confidentiality is essential in their work. They are seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.

In light of every attorney’s duty of confidentiality, the petitioners, both “United States persons,” are wrong to contend these plaintiff-respondents allege merely “speculative” and/or “self-inflicted injuries” from surveillance under the FISA Amendments Act (FAA), §1881a. FISA surveillance targets regions, persons and subjects heavily implicated by matters in which the respondents serve as defense counsel. They thus must choose between foregoing international communications about sensitive matters or incurring the expense and burden of traveling overseas for in-person communication. The court of appeals should be affirmed.

Pleau v. United States and Chafee v. United States

Amicus Curiae brief of the Rhode Island ACLU; National Association of Criminal Defense Lawyers; National Legal Aid & Defender Association; Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire; Office of the Federal Defender of the District of Maine; Rhode Island Association of Criminal Defense Lawyers; and Colegio de Abogados de Puerto Rico in support of the petitions for certiorari.

Argument: The Interstate Agreement on Detainers, 18 U.S.C. app. 2, §2 (“the IAD”), which is binding on all states and the United States, empowers a prisoner in state custody, who is subject to a detainer by the United States, to ask the governor not to transfer him to federal custody to face charges in federal court. It also authorizes the governor to refuse to transfer the prisoner. In this case, after lodging a detainer for Rhode Island prisoner and petitioner Jason W. Pleau, the federal government requested temporary custody pursuant to the IAD to face federal charges. Mr. Pleau exercised his right under the IAD to ask Gov. Lincoln Chafee to refuse the request, and Gov. Chafee declined to transfer Mr. Pleau to federal custody. The United States then opted to circumvent the IAD by securing a writ of habeas corpus ad prosequendum for Mr. Pleau over his and the governor’s objections. The U.S. Court of Appeals for the First Circuit approved the writ, which allowed the federal government to avoid its obligations under the IAD.

By allowing the United States to circumvent the IAD in this way, the First Circuit’s decision violated Mr. Pleau’s rights, threatened the IAD’s prisoner-protective scheme, and undermined its framework of cooperative federalism. Here, by using a writ to obtain custody of Mr. Pleau, the federal government ignored Governor Chafee’s right to refuse to transfer a prisoner from state custody and Mr. Pleau’s right to seek this refusal. In so doing, the federal government received the benefits of lodging a detainer without fulfilling its obligations as a party to the IAD. This is precisely what the Supreme Court disallowed in United States v. Mauro, 436 U.S. 340 (1978). By misinterpreting Mauro, the First Circuit returns detainer practice to the uncoordinated situation that existed before the IAD. Further, because Circuit Courts have decided this issue differently, uncertainty once again prevails. The brief argues that the Supreme Court should grant the petitions in this case to protect the rights that the IAD grants to prisoners, reinforce its interpretation of the IAD in Mauro, and restore order and predictability under the IAD among the Circuits.

United States v. Pleau (Lincoln D. Chaffee, Gov., Intervenor)

Amicus curiae brief of ACLU Rhode Island, ACLU of Puerto Rico, ACLU of Maine, ACLU of Massachusetts, New Hampshire Civil Liberties Union, Office of the Federal Defender for the Districts of Rhode Island, Massachusetts and New Hampshire, National Association of Criminal Defense Lawyers, Rhode Island Association of Criminal Defense Lawyers, and Colegio de Abogados de Puerto Rico (also known as the Puerto Rico Bar Association) in support of Jason Wayne Pleau and supporting reversal of the decision below.

Argument: The Interstate Agreement on Detainers is critically important to State and Federal prisoners subject to detainers based on untried charges. Enacted by Congress in 1970, the IAD created cooperative procedures by which prisoners and prosecutors may initiate the prompt disposition of untried charges. The United States is a party to the IAD, and when it chooses to proceed under the IAD by lodging a detainer for a State prisoner, it must comply with the IAD’s provisions, including the duty to respect a governor’s discretionary decision to refuse to transfer the prisoner to federal custody. Here, the United States charged Jason Pleau, lodged a detainer against him and then requested his temporary custody under the IAD. When the Rhode Island Governor refused, as Article IV(a) of the IAD entitled him to do, the United States tried to circumvent the Agreement by using a writ of habeas corpus ad prosequendum. As the Panel ruled, however, United States v. Mauro, 436 U.S. 340 (1978), precludes the United States from using a writ to evade its obligations under the IAD. Further, permitting the United States to opt-out of the IAD, after lodging a detainer, would undermine the integrity of the entire IAD process, cause the very problems for prisoners that the IAD was intended to alleviate, and frustrate the cooperative procedures that lie at the heart of the statute.