Brief of the Oregon Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant-Respondent.

Argument: If OEC 609 is construed to permit all felony convictions without weighing the risk of unfair prejudice, the rule violates federal due process. The indiscriminate admission of even unfairly prejudicial convictions runs counter to common law traditions that require “fundamental fairness” and generally bar the use of propensity evidence.

Barring the use of OEC 403 prior to admitting felony convictions also burdens the exercise of Oregon defendants’ constitutional trial rights. First, it forces defendants to choose between the right to the right to testify and an impartial jury. Relatedly, the per se admission of prior felony convictions against defendants tends to produce a chilling effect on the right to testify because if they take the stand, they will be unfairly prejudiced. The Supreme Court has made clear, “[t]he right to testify on one’s own behalf at a criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary process.’” Rock v. Arkansas, 483 US 44, 51, 107 S Ct 2704, 97 L Ed 2d 37 (1987) (quoting Faretta v. California, 422 US 806, 817, n 15, 95 S Ct 2525, 45 L Ed 2d 562 (1975)). Second, the threat of per se prior conviction impeachment also impermissibly burdens the right to trial because it both distorts the strength of the government’s case and adds to the coercive nature of the plea-bargaining system of criminal adjudication.

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]

We tell ourselves that we are protected from government abuse by a system of jury trials in which jurors decide guilt or innocence and judges determine sentences. What is the reality? We have abandoned the system of public jury trials established in the Constitution and Bill of Rights in favor of a shadow system of guilty pleas driven by the logic of prosecutorial power.

Comments with FAMM to Deputy Attorney General Lisa Monaco regarding U.S. Attorney offices requiring waiver of the right to seek compassionate release during plea negotiations.

The Long Shadow of the Trial Penalty

Thanks to the trial penalty, criminal trials no longer offer sufficient opportunities for the community to evaluate the conduct of the police during citizen-officer encounters. Police and prosecutors can effectively coerce guilty pleas thereby obscuring, even deliberately shielding, unlawful police conduct from public exposure and review by the courts.

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.

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.