[Referring to the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring (USA FREEDOM) Act (H.R. 3361 / S. 1599, 2013)]  All of the undersigned organizations believed the original version of the USA Freedom Act introduced in both the House and the Senate was an important step towards comprehensive reform. However, we are very concerned about the changes made to the bill in the House and the breadth of the surveillance that the bill could abusively be read to authorize.

Brief for Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner.

Argument: Criminal Court records of conviction are often ambiguous, particularly in misdemeanor cases. In many lower criminal courts, misdemeanor convictions are not "on the record." Misdemeanor records often omit key information about the conviction. Even where misdemeanor records once existed, they may have been destroyed or may be otherwise inaccessible. Because criminal records are often ambiguous, the Eighth Circuit's approach leads to inconsistent immigration outcomes. Under the Eighth Circuit’s approach, two noncitizens convicted of the same divisible misdemeanor offense in different counties in the same state could face different immigration outcomes depending on the completeness of the Shepard documents from their criminal cases. When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes. Such a system is wholly inconsistent with the categorical approach, which seeks to guarantee that “all defendants whose convictions establish the same facts … be treated consistently, and thus predictably, under federal law.” Moncrieffe, 569 U.S. at 205 n.11. 

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Respondent.

Argument: The government’s interpretation of 18 U.S.C. §1382 would render the statute unconstitutionally overbroad. A statute is facially overbroad when there is a realistic danger that it will significantly compromise speech rights. The government’s new interpretation of Section 1382 would (i) extend existing military regulations onto public roads, thereby infringing on a substantial amount of protected speech in a public forum and (ii) authorize base commanders to promulgate new military regulations that could further restrict protected speech on public roads. The government’s interpretation of 18 U.S.C. §1382 encourages arbitrary enforcement by the government, even against civilians who lack notice of how the law is applied. The government’s interpretation of 18 U.S.C. §1382 should be rejected under the rule of lenity.

Brief of Juvenile Law Center, National Association of Criminal Defense Lawyers, et al. as amici curiae in Support of Appellee Edwin Ike Mares (full list of amici in appendix to linked brief).

Argument: The U.S. Supreme Court has repeatedly held that children are categorically less deserving of the harshest forms of punishment. Appellee’s mandatory life sentence is unconstitutional even in light of Wyoming’s post-millersentencing amendments. Miller v. Alabama applies retroactively pursuant to U.S. Supreme Court precedent.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The rule of lenity supports the narrow construction of 18 U.S.C. § 2113(e) urged by petitioner in this case. The phrase “forces any person to accompany him” is ambiguous. The statute’s ambiguity increases the risk of inconsistent application. Section 2113€ requires substantial movement. The Court should adopt a clear rule for interpreting the forced accompaniment provision of § 2113(e). Specific rules are especially important in applying vague mandatory minimum statutes. The conflicting tests used by lower courts to interpret § 2113(e) are inadequate. In interpreting the statute, the Court should rely on the distinction for kidnapping already drawn in the Model Penal Code (MPC). Under the MPC test, the petitioner’s § 2113(e) conviction should be reversed.

Brief of the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums as Amici Curiae in Support of Petitioner.

Argument: Judicial discretion to consider all information about the case and the offender is a time-honored principle of American law. Judicial discretion has historically been understood as a means of ensuring justice in individual cases. Congress has expressly affirmed judges' discretion to consider the fullest information possible. Abrogating judicial discretion in the sentencing context requires a clear statement of congressional intent. Section 924(c) does not abrogate a district court's discretion to consider the length of the section 924(c) mandatory minimum in imposing a sentence on the underlying offense. Sentence 924(c) does not clearly evince congressional intent to abrogate judicial discretion to consider the mandatory minimum sentence. Any ambiguity in section 924(c) must be resolved in favor of the defendant.

Brief of Amici Curiae Immigrant Defense Project, Detention Watch Network, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild in Support of Petitioner’s Petition for Rehearing and Rehearing En Banc.

Argument: Amici urge the Court to grant rehearing or rehearing en banc because the panel’s decision is at odds with Moncrieffe v. Holder, 569 U.S. 184 (2013). Amici agree with Ms. Gutierrez that when the record of a prior conviction under a divisible statute is ambiguous, the conviction should not bar eligibility for relief from removal. Amici submit this brief to raise three additional points. First, the panel’s decision unfairly bases relief eligibility on the happenstance of whether a prior criminal court creates or maintains the records necessary to disprove a disqualifying conviction. The noncitizen has no control over these criminal court practices but, under the panel’s decision, could face ineligibility for relief because of them. Second, the panel’s decision ignores that noncitizens—who are often without counsel and detained—face far greater impediments to obtaining and submitting the required conviction records than the Department of Homeland Security (DHS). Third, the panel’s decision has a broad impact: it operates to categorically bar relief for asylum seekers, victims of crime, and those—like Ms. Gutierrez—with longstanding residence and deep family ties in this country.