TCP Newsletter
February 2017
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Dear Friend of TCP,Top

This is our first newsletter since last November's election. The nation is facing enormous changes and challenges, both here in Washington and around the country. We seem to be reliving some of the most difficult issues TCP has addressed over the years, and that we thought were resolved. 

Unfortunately, from talk of waterboarding to openly discriminatory immigration policies to litmus tests for judicial nominees, and more, we seem to be going backwards, and the challenges to our constitutional rights are increasing at a pace faster than we could possibly have predicted. 

TCP is, as always, resolved to be in the forefront of the battles to protect those rights, and we are already working hard to do so by streamlining our efforts so that we can be most effective, and to focus on the most critical challenges we face. Look for more information in our next newsletter.
 
While much has changed in the country and the world, TCP has kept up with our unique work, seeking to address these issues with bipartisan consensus recommendations and advocacy.  

Sincerely,

Virginia Sloan
President
In This Issue
TCP Leads Coalition Opposing Calls to Resume Torture Article1
Counter-terrorism Policies and Practices

TCP spearheaded a January 27 letter to President Trump from a diverse coalition of human rights, civil liberties, and religious groups opposing any executive action that would facilitate torture or other abusive interrogation and detention practices. 

"Torture is morally reprehensible," the groups wrote. "It has long been absolutely prohibited under both domestic and international law, a prohibition that Congress strongly reinforced on an overwhelming, bipartisan basis just last year. There is no serious debate over this."

The letter underscores widespread opposition to torture from the President's nominees, cabinet members, and senior advisors, many of whom have openly rejected bringing back the CIA's now-defunct "enhanced interrogation" program.  It also explains the dangers of maintaining the prison at Guantanamo Bay, and the two pillars on which it rests: indefinite detention without charge or trial, and a military commissions system seemingly incapable of delivering either fairness to defendants or justice to victims.

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Supreme Court Agrees to Hear Two Cases with TCP Involvement Article2
The Supreme Court agreed to hear two cases in which TCP was asked to support the request for certiorari. Oral argument for both cases is expected this spring.
 
In McWilliams v. Dunn, a capital case out of Alabama, the Court will decide whether, in light of Ake v. Oklahoma, the 14th Amendment requires that expert assistance for an indigent defendant be independent of the prosecution. TCP's brief in support of the grant of certiorari argues that indigent defendants must have access to dedicated mental health professionals and a confidential relationship with them.
 
In Turner v. United States, a case stemming from murder convictions out of Washington, D.C., the Court granted certiorari to address the government's failure to disclose exculpatory evidence, including evidence concerning two alternative suspects, and whether this was "material" to the outcome of the case. At the request of the MidAtlantic Innocence Project, TCP helped organize a brief in support of the cert grant. After the Court agreed to hear the case, TCP organized a subsequent brief on the merits from over 30 former federal prosecutors (several of whom also participated in a TCP-organized brief in the D.C. Court of Appeals in 2013).

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Justice for All Act Reauthorized Article3
Right to Counsel

TCP Director of Justice Programs Sarah Turberville worked in coalition with prosecutor, victims' rights and innocence protection organizations in negotiating the reauthorization of the Justice for All Act (JFAA). Ultimately, the JFAA was passed by the House in late November and was signed by President Obama on Dec. 15. Importantly, the act contains a new provision to allow the Department of Justice to provide technical assistance to states requesting support in meeting their obligation to provide effective assistance of counsel to indigent defendants. The bill also expands the availability of and funding to support post-conviction DNA testing, as well as support for the capital litigation fund to train capital defense lawyers.
 
Sarah also published a blog on the impact of the JFAA on defenders for the National Association for Public Defense website.

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ABA Human Rights Magazine Features TCP Voices Article4

The latest issue of the ABA's Section of Civil Rights and Social Justice's (CRSJ) prestigious "Human Rights" magazine is titled "The Death Penalty: how far have we come?" The issue is filled with articles by death penalty experts on a variety of issues. In one of those articles, "Public Safety Officials on the Death Penalty," Gerald Galloway, the former chief of police in Southern Pines, North Carolina, describes the group by that name, which is staffed by TCP.  He describes the reason for PSODP's formation: the death penalty is a "seriously flawed" policy that "purport[s] to safeguard our communities without delivering what [it] promise[s]." He concludes that "[f]ew chiefs...will say they need capital punishment - but an increasing number will agree we do need to confront its problems and begin exploring alternative ways to achieve a more just public safety system." 
 
TCP President Ginny Sloan's column in the same issue names Pennsylvania Governor Tom Wolf as the CRSJ Human Rights Hero because he, along with five other governors who preceded him, imposed a moratorium on Pennsylvania's broken capital punishment system despite the "sometimes extraordinary dissent from [his] constituents and political opponents." Ginny is a longtime CRSJ Council member; TCP's Irreversible Error served as a resource for Governor Wolf as he made his decision to impose a moratorium on the death penalty because of the "overwhelming evidence of the system's significant flaws."

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Committee on Policing Reforms Releases Report on Body-Worn Cameras Article5

TCP's Committee on Policing Reforms published its new report on police body-worn cameras on December 13 .  The release of the report was featured in Politico's Morning Tech The report is distinct from prior proposals because it features consensus recommendations by a broad mix of signatories with civil liberties, law enforcement, and military expertise, offering the potential for consensus solutions on a complex issue challenging police departments and cities throughout the nation. The report covers a wide range of constitutional and policy issues, and makes recommendations on controversial items including public release of footage, whether officers should review footage before writing reports, and facial recognition.
 
TCP Senior Counsel Jake Laperruque promoted the facial recognition portions of the report in several venues. On November 22, Jake wrote an op-ed published in Slate's "Future Tense" section on the potential impact of the use of facial recognition in conjunction with police body cameras.  On December 14, Jake gave a presentation at the Cato Institute's annual Surveillance Conference, an event including a wide array of surveillance and security experts . A December 22 Cato blog  describes Jake's presentation at the conference.

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Panel Considers State of Judicial Nominations Article6
Separation of Powers

On November 18, TCP sponsored a panel discussion on the state of judicial nominations and possible developments under the Trump administration. Two distinguished constitutional scholars debated what the Constitution's "advice and consent" clause really means.  Does the Senate have a constitutional responsibility to at least consider all nominees put forward by the president? If senators, in fact, carry out their threats to block votes on judicial nominees, what is the impact on the Supreme Court and the judiciary in general? Does the president have any recourse? The rousing discussion featured Professor Steve Vladeck of the University of Texas Law School at Austin and TCP's Supreme Court Fellow; Ed Whelan, President of the Ethics and Public Policy Center; and Adam Liptak, Supreme Court reporter for the New York Times. The event was broadcast on C-SPAN 2.

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