Unfortunately, the Feinstein amendment [to the National Defense Authorization Act for FY 2013 (S. 3254)] fails to address a central concern raised in the public debates: the specter of the military being used to police our streets and detain individuals on U.S. soil. The bill also unintentionally reinforces the false and discriminatory notion that due process protections are only afforded to some – not all – persons within the United States. 

Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the Center for Legal and Evidence-Based Practices in Support of Appellant Julio Cesar Ortega Campoverde.

Argument: Mr. Ortega Campoverde is challenging the terms of his immigration detention, which include a bond he cannot afford that was set without considering his ability to pay. He argues that the Equal Protection Clause, the Due Process Clause, and the Immigration and Nationality Act require immigration judges in bond hearings to consider both an immigrant detainee’s ability to pay and alternative conditions of release. The amicus brief reviews evidence from the criminal pretrial system to demonstrate that nonmonetary alternatives to detention successfully address the goals of assuring a defendant’s appearance in court and protecting public safety, without overburdening individual liberty. It also reviews the ways in which detention impairs case outcomes, and long-term outcomes for individuals, unrelated to the merits.

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.

The Military Commission Travesty at Guantanamo Leads to Judicial Reaffirmation of a Basic Principle

A judge, while presiding over a case at Guantanamo, secretly negotiated for a job as an immigration judge in the U.S. Department of Justice (Executive Office for Immigration Review). Thus, the judge presided over a case in which his potential employer appeared. That alone should be sufficient grounds to require disqualification.

President Lisa Wayne's letter to a member of the U.S. House regarding proposals in the National Defense Authorization Act (NDAA) for fiscal year 2012 that would affect people charged and detained for terrorism crimes.

Brief for Amici Curiae National Association of Criminal Defense Lawyers, Pretrial Justice Institute, and Center for Legal and Evidence-Based Practices in Support of Plaintiffs-Appellees and Affirmance.

Argument: Well-established constitutional law requires that individuals detained by the government receive an individualized bond hearing. The procedural safeguards imposed by the district court for bond hearings are constitutionally required and routinely guaranteed by federal and state law in analogous contexts. Hearings on the need for detention must be prompt. The government must bear the burden of proof. An accurate, contemporaneous record with particularized findings must be kept. Vastly greater numbers of individuals have individualized bond hearings in state pretrial systems. Modern pretrial practices demonstrate that categorical detention of individuals seeking asylum is not necessary to ensure they appear at their hearings. Asylum seekers are likely to appear for their court dates. Risk assessment tools are available to guide the government in deciding which asylum seekers should be released pending immigration proceedings.

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

Argument: Because Federal Rule of Appellate Procedure 4(a)(7) is not jurisdictional, it must be construed in favor of preserving a party’s right to appeal. Parties must have clear notice of the event that starts the clock running for filing a notice of appeal. Construing Federal Rule of Appellate Procedure 4(a)(7) as starting the time running for the filing of a notice of appeal before the decision appealed from is available to the appellant thwarts appellant’s ability to consult with his counsel and to make an informed decision whether to take an appeal.

Material Witness and incommunicado detention update Kent V. Anderson

Material Witness Kent V. Anderson, Jonathon E. Hawley