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

Argument: The Eleventh Circuit reaffirmed that a person violates the CFAA by using a computer to access information for an improper purpose, even if otherwise authorized to access that information.  This reading goes beyond the CFAA’s text, fails to account for Congress’ intent in enacting it, and flouts the rule of lenity, which requires that ambiguous criminal statutes be construed in a defendant’s favor.  The decision below also interpreted the CFAA in a manner that raises due process concerns, both because it is an unconstitutionally vague reading of the statute and because it invites arbitrary and discriminatory enforcement, and thus the doctrine of constitutional avoidance requires that Petitioner’s reading of the statute prevail.  Further, an expansive reading of the CFAA would contribute to the trend of overcriminalization and give courts and prosecutors a backdoor method of updating criminal laws in response to changed technological—or potentially cultural, economic, or political—realities, something our constitutional structure reserves for Congress.

Brief of National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, University of Nevada, Las Vegas Immigration Clinic, National Association of Criminal Defense Lawyers, Washington Defender Association, Brooklyn Defender Services, Bronx Defenders, and Immigrant Defense Project as Amici Curiae in Support of Appellees and Cross-Appellants Gerardo Gonzalez, et al.

Argument: ICE’s use of immigration detainers violates the Fourth Amendment’s prohibition against arbitrary detention and its requirement that a person in government custody receive a prompt, neutral determination of probable cause for their arrest. ICE issues immigration detainers to local law enforcement without any neutral or even individualized probable cause determination, but based merely on the automated review of computerized databases that are incomplete and inaccurate. The subjects of these detainers are frequently held for at least 48 hours after they are otherwise eligible for release, even though most are not even taken into ICE custody. Those taken into ICE custody are frequently denied bond and remain in detention for additional weeks, months, or even years before an immigration judge rules on their removal proceedings, without any neutral review of probable cause supporting their arrest. ICE detainers also result in a wide range of negative collateral consequences even separate and apart from lengthy detention. Because ICE detainers have repercussions indistinguishable from criminal proceedings in which prompt, neutral review of probable cause is required, they must be subject to the same Fourth Amendment protections under Gerstein.

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Idaho Association of Criminal Defense Lawyers in Support of Plaintiffs-Appellants.

Argument: Plaintiffs allege systemic deficiencies in Idaho’s provision of public defense services and seek prospective relief. The court is addressing the proper standard to apply to plaintiffs’ claims. Plaintiffs should be required to demonstrate that Idaho’s public defense system presents a substantial risk of harm to members of the plaintiff class. The types of harm that can result from the systemic deficiencies alleged by plaintiffs include overly high bail, unnecessary or overlong pretrial detention, unwarranted guilty pleas leading to negative collateral consequences, lack of time and resources to prepare defenses, wrongful convictions, and economic and social costs to society as a whole. 

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

Argument: The criminal justice system is a system of plea negotiations that gives prosecutors enormous leverage over criminal defendants. Defendants face a higher sentence if they go to trial, which drives many defendants to take a plea bargain. This “trial penalty” means that some innocent defendants plead guilty. Defendants who plead guilty while maintaining their innocence should not be subject to a sanction of criminal contempt for doing so. Prosecutors may have wholly laudable reasons to dismiss cases even after a plea, and courts should not chill such actions with the threat of a contempt sanction.

Brief of the National Association of Criminal Defense Lawyers, Mississippi Office of the State Public Defender, and Mississippi Public Defenders Association In Support of Petitioner.

Argument: The Supreme Court has held that life without parole is appropriate only for a “permanently incorrigible” juvenile offender.  States like Mississippi that do not require a finding of permanent incorrigibility are not reliably implementing that command because offenders receive life-without-parole sentences even if they are capable of change.  Mississippi’s approach also produces arbitrary sentencing outcomes, because a juvenile’s sentence depends on whether his sentencer independently comprehends Miller, not on whether he is actually permanently incorrigible.  States that require a finding of permanent incorrigibility ensure that juvenile offenders only receive life-without-parole sentences when the sentence is proportionate and lawful.  Sentencers can still impose life-without-parole sentences when an offender is actually permanently incorrigible. 

Brief of the National Association Criminal Defense Lawyers et al. as Amici Curiae in Support of Appellant.

Argument: Tennessee’s sentencing statute for first-degree murder, which mandatorily imposes a minimum 51-year term of prison confinement on a juvenile, without consideration of the teenager’s youth and immaturity or other mitigating circumstances, violates the Cruel and Unusual Punishments Clauses and other provisions of the federal and state constitutions. In Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 460 (2016), the United States Supreme Court held that, in light of contemporary understanding of adolescent psychology and brain development, it is unconstitutional to mandatorily deprive a juvenile offender of “a meaningful opportunity to obtain release based demonstrated maturity and rehabilitation.” Because a sentence of life without the possibility of parole for 51 years exceeds the expected life-span of offenders sentenced at a young age, it does not provide young offenders with the “meaningful opportunity” for release contemplated by the Supreme Court of the United States. A majority of state court decisions from outside Tennessee have held that term-of-years sentences of over fifty years do not provide young offenders with a meaningful opportunity for release. Further, after Miller and Montgomery, numerous state legislatures have enacted juvenile sentencing and parole procedures allowing juveniles the opportunity for parole within a much shorter time period.

Memorandum of Amici Curiae the National Association of Criminal Defense Lawyers and the American Civil Liberties Union Foundation of Vermont.

Argument: The COVID-19 pandemic is of unprecedented national and global significance, necessitating a drastic local response. The rate of infection in the Vermont DOC is striking in comparison both to the rate of infection in Vermont as a whole, and even compared to the highest rate of infection for any state in the country. The Department of Corrections is demonstrably ill-equipped to adequately respond to the pandemic, and the Court must intervene to protect the constitutional rights of those incarcerated. The Court should join with judges from other jurisdictions across the country, who have reviewed inmate motions and petitions similar to those that are currently before this Court, and who have taken steps to reduce incarceration by releasing inmates on bail in light of this unprecedented pandemic and the conditions of confinement issues it brings to light.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff

Argument: Texas Governor Greg Abbot’s Executive Order GA-13 of March 29, 2020 seeks to order that Texas judges may not release persons to personal bonds where the person has previously been convicted of a crime that involves physical violence or the threat of physical violence or of a person currently arrested for such a crime; that is supported by probable cause. Leaving aside the vague terms of this executive order, it encroaches on the function of the courts to determine whether persons should be released on personal bond, whether they should be released on electronic monitoring, or should be released on a cash or surety bond with conditions. It does not prohibit release of this same class of described persons on cash or surety bail. Therefore, it appears to place restrictions for release on the poor over those for those of greater means without any rational relationship to a distinguishing important governmental purpose. Thus, those previously convicted of the defined crimes or currently charged with those crimes can obtain release; while those without the economic means to post a cash or surety bail cannot obtain release. Under the circumstances presented by the COVID 19 pandemic and the Texas Criminal justice system, GA 13 violates the separation of powers, interferes with judicial independence, violates equal protection and due process of law, and constitutes cruel and unusual punishment for those who cannot afford cash or surety bail who otherwise qualify for release on personal bond. 

 Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendants-Appellants.

Argument: The presumption of mens rea is deeply rooted and has historically applied beyond merely distinguishing culpable from innocent conduct.  The mens rea requirement arose to ensure punishment was fair and proportional.  The mens rea requirement applies to offenders guilty of otherwise culpable conduct.  The presumption of mens rea contains only a narrow exception for public-welfare offenses.  The presumption of mens rea should apply to drug quantity and type under 21 U.S.C. § 841.

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

Argument: Taylor's categorical approach applies to all ACCA predicates. A prior conviction that lacks a mens rea element cannot constitute a "serious drug offense." ACCA's legislative history affirms that state drug convictions lacking a mens rea requirement do not qualify as "serious drug offenses." ACCA will continue to have a geographically disparate impact unless the categorical approach is applied. 

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 Amicus Curiae National Association of Criminal Defense Lawyers in Support of Appellee.

Argument: The Davidson County Criminal Court had jurisdiction to evaluate Mr. Abdur’Rahman’s motion to re-open his post-conviction petition, which gave it the inherent power to preside over a settlement of his post-conviction case. Due Process, principles of contract law, and economic efficiency require Mr. Abdur’Rahman’s settlement agreement to be specifically enforced. Under agency law principles, the District Attorney General had the actual and apparent authority to settle Mr. Abdur’Rahman’s post-conviction case. District Attorneys General, duly elected by the public in their district, are in a superior position to broker settlements in post-conviction capital cases. Troubling equal protection issues are raised in a system where the State Attorney General can appeal some post-conviction settlements but allow others to stand.

Brief of Missouri Association of Criminal Defense Lawyers (MACDL) and National Association of Criminal Defense Lawyer (NACDL) as Amici Curiae in Support of Appellant and Intervenor.

Argument: Conviction of innocent persons cannot be tolerated. A prosecutor should be able to exercise her statutory and ethical duty to assist in overturning wrongful convictions. Missouri’s state habeas corpus rule is inadequate to provide a remedy to innocent persons who are wrongfully convicted because it requires the innocent person, who may be without counsel, to file and litigate his petition in the county where he is in custody rather than the county of conviction. Missouri Court Rules 29.11 (motion for new trial) and 29.12 (plain error) should be construed to allow a prosecutor to file a motion in the trial court to correct a wrongful conviction.

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

Argument: Because Oklahoma law allows challenges to the subject-matter jurisdiction of a criminal court to be raised at any time, the procedural bar applied by the state court of last resort was not an adequate ground in state law to avoid jurisdiction under 28 U.S.C. § 1257. The Court should reverse the decision of the state courts and remand with instructions to dismiss the charges against petitioner, because Congress has the sole prerogative to set the limits of state criminal jurisdiction in Indian country, and Congress has never given Oklahoma the authority to prosecute crimes committed by Indians in Indian country in that state.

Brief of Amicus Curiae, Office of the Ohio Public Defender [and the National Association of Criminal Defense Lawyers] in Support of Appellant, David C. Kinney, Jr.

Argument: The prohibition in R.C. 2953.08(D)(3)--which is entirely unique to Ohio--is most accurately understood as a legislative oversight with severe unintended consequences. But even if not, it is unconstitutional on both cruel-and-unusual-punishment and equal-protection grounds. Amici Curiae urge this Court to provide meaningful appellate review of sentences for aggravated murder in Ohio.