Written Testimony of Lucian E. Dervan Assistant Professor of Law Southern Illinois University School of Law Before the House Committee on the Judiciary Over-Criminalization Task Force, United States House of Representatives “Regulatory Crime: Solutions”

Written Statement of Bryan A. Stevenson, Founder and Executive Director Equal Justice Initiative and Professor of Clinical Law New York University School of Law Before the House Committee on the Judiciary Over-Criminalization Task Force Re: “Penalties”

This month the Honorable John L. Kane reviews Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System by Jed S. Rakoff.

The NACDL Task Force on Risk Assessment Tools commissioned Dr. Melissa Hamilton to produce a comprehensive analysis of how risk assessment tools are developed and applied. This report is a significant contribution to the body of scholarship and resources concerning risk assessment tools. It is an in-depth and accessible resource for practitioners, policymakers, advocates, and indeed all system actors in the nation’s criminal legal apparatus. It is designed to provide the information and guidance necessary to properly assess various risk assessment tools. [Released November 2020]

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

Argument: Kenneth Robinson’s case is a quintessential example of why people plead guilty under the threat of a trial tax. Kenneth withstood the immense pressure to plead guilty. A child of only fifteen, charged with murder under the “hand of one, hand of all” doctrine, he exercised his right to a jury trial, foregoing a twenty-three-year offer to plea to manslaughter. He refused to relinquish his right to appeal, foregoing a thirty-year plea offer following guilty verdicts at trial. He paid the price. Most defendants plead guilty to avoid the trial tax; Kenneth went to trial, and the trial tax was levied against him in the form of a fifty-year sentence. By contrast, Kenneth’s co-defendants pleaded guilty and received significantly shorter sentences. NACDL is uniquely positioned to observe the criminal justice system. Over time, based on empirical data and the experiences of its members, NACDL has developed an understanding of the trial tax—the reality that individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. It is NACDL’s position that the trial tax is antithetical to the American concept of justice because it diminishes jury trials, undermines the legal system’s goal of truth-seeking, relieves the government of its burden of proof, contributes to wrongful convictions, and disproportionately hurts young people. Kenneth Robinson’s case in particular starkly reveals the dangers to a defendant who chooses to exercise his constitutional right to trial.

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.

Collateral Consequences: Practice presented by Amanda David, Assistant Federal Defender, Federal Public Defender of Eastern District New York

Race Matters I: The Impact of Race on Criminal Justice
September 14-15, 2017 | Detroit, MI

To what extent, if any, does Brady apply in the plea bargaining process?

Letter to the House Judiciary Committee regarding penalties and prosecutorial requirements for revenge porn cases, as proposed in the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2019 (H.R. 2896).

Trials are diminishing at all levels. Guilty pleas are the foundation of the criminal justice system. Exhaustion and helplessness work to wear down criminal defendants throughout the pretrial process. Seeing packed courtrooms and hearing that the prosecutor “lost the file” – which requires the case to be adjourned until a later date – have a nontrivial effect on a defendant’s decision-making. Also, pleas are frequently sold to defendants as the best alternative to an intractable situation. What are the solutions?

"Plea Bargained vs. Open Pleas: What the Data Reveal," Westlaw Journal White Collar Crime, March 2017.

Brief of National Association of Criminal Defense Lawyers, Cato Institute, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Texas, Due Process Institute, and Texas Public Policy Foundation as Amici Curiae in Support of Defendant-Appellant and Reversal. 

Argument: The trial penalty is forcing virtually all criminal defendants to forgo their trial rights. The trial penalty erodes key foundations of the criminal justice system. The trial penalty fundamentally undermines the Sixth Amendment right to a jury trial. The trial penalty compromises the integrity of the criminal justice system. Courts should carefully scrutinize sentencing recommendations that appear to penalize defendants for exercising their right to a jury trial. 

Brief of Amici Curiae the Criminal Defense Attorneys of Michigan, National Association of Criminal Defense Lawyers, the National Association for Public Defense, and the Ohio Public Defender.

Argument: Imposing additional sanctions on previously-convicted criminal defendants by retroactive application of a new law or new reporting is contrary to due process and injects wide spread uncertainty into the plea bargaining process. Such practice makes it difficult if not impossible for defense counsel to advise clients consistently with their Sixth Amendment duties. When the rules that drastically increase the consequences of convictions are changed and applied, sometimes long after the plea bargain process is complete, the result is a fundamental unfairness with no redress.

Amicus curiae brief of the National Association of Criminal Defense Lawyers, Connecticut Criminal Defense Lawyers Association, and the American Civil Liberties Union Foundation.

Argument: A defendant who validly pleads guilty should be allowed to assert ineffective assistance of counsel in a case where counsel failed to communicate a more favorable plea offer; the trial court is the proper forum for crafting a remedy to ineffective assistance at the plea stage.

Brief of Amicus curiae of the National Association of Criminal Defense Lawyers, Legal Ethics Professors and Legal Ethics Practitioners In Support of Respondent.

Argument: Advisory Ethics Opinion E-435 does not conflict with controlling federal law. Federal statutes, regulations, and court rules recognize the lawyer conduct ethics rules of this state. Opinion E-435 correctly concludes that waiver of ineffective assistance claims at a guilty plea create a conflict of interest for the defense lawyer that the prosecutor cannot impose on a pleading defendant. Conclusion: “Kentucky Ethics Op. E-435 is a correct statement of the controlling ethical principles and does not conflict with any law. The governing of lawyer conduct is completely within the power of the State, and federal prosecutors are bound by the State’s ethics rules under 28 U.S.C. §530b. This ethics opinion governs the conduct of prosecutors and criminal defense attorneys who practice in the state courts of Kentucky as well in the federal courts in Kentucky. Therefore, the U.S. Attorney’s brief of United States in Support of Motion for Review of Ethics Opinion should be rejected and the ethics opinion as written should be affirmed.”