Midyear 2005
108A (Criminal Justice Section)
approved, as follows:
RESOLVED, That the American Bar Association urges federal, state, local and territorial jurisdictions to enact statutes to adequately compensate persons who have been convicted and incarcerated for crimes they did not commit.
FURTHER RESOLVED, The American Bar Association urges jurisdictions to consider the following factors in drafting a compensation statute:
A. Conditions Precedent:
1. Statutes should require claimants to have been incarcerated as the result of a conviction.
2. Claimants must be able to show that their convictions were vacated or pardoned on a ground demonstrating actual innocence, which for this purpose requires that the claimant did not commit the crime, or the crime did not occur.
3. The claimantâs own misconduct should not have substantially contributed to the conviction. A false confession or guilty plea does not automatically bar recovery.
B. The size of the award:
1. The award should be in proportion to the time served;
2. The award should be based upon economic loss;
3. The award should include non-economic losses, such as pain and suffering, humiliation, loss of consortium, and loss of reputation; and
4. Claimants are eligible for compensation only if, but for this conviction, the claimant would not have been incarcerated. The government should have the burden of demonstrating that the claimant would have otherwise been incarcerated.
C. A successful claimant shall be entitled to receive reasonable attorneys fees in connection with establishing the claim of actual innocence.
D. Judgment should include relief from all governmental obligations incurred as a result of the trial, conviction and incarceration of the claimant, and restoration of all rights lost as a result thereof.
E. The court or executive authority that releases an individual based on actual innocence should give that person notice of the statutory compensation scheme.
1. Any suit must be brought within one year of notice.
2. If the claimant was not given notice, suit must be commenced within two years after exoneration is final or after the adoption of a compensation statute.
F. Jurisdictions should assist the innocent to reenter the community.
1. Assistance should be provided that is at least equivalent to that available to individuals on probation or parole.
2. The erroneous judgment of conviction should be expunged from the innocentâs criminal record.
108B (Criminal Justice Section)
RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.
108C (Criminal Justice Section)
RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to reduce the risk of convicting the innocent by establishing standards of practice for defense counsel in serious non-capital criminal cases that:
1. Formalize the means for providing appropriately experienced and qualified appointed or assigned defense counsel in serious criminal cases, modeled after the means prescribed in Standards 5-1.2 and 5-1.3 of the ABA Standards for Criminal Justice Providing Defense Services and in the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, by:
a. Adopting and implementing a Criminal Defense Plan to be administered by a Responsible Agency, which is either a defender organization or an independent authority; and
b. Authorizing the Responsible Agency to establish and publish recommended standards for defense representation, including knowledge, training, and experience in the defense of serious criminal cases, and using as a guide the requirements enumerated in Standard 5-2.2 of the ABA Standards for Criminal Justice Providing Defense Services;
2. Ensure that the workloads of defense counsel be maintained at levels that enable them to provide the level of representation recommended by the Criminal Defense Plan, using as a guide the requirements enumerated in Standard 5-5.3 of the ABA Standards for Criminal Justice Providing Defense Services;
3. Ensure that defense counsel are compensated at rates no less than comparable prosecutors and that other defense team members are compensated at rates no less than comparable professionals in the private sector, using as a guide the requirements enumerated in Standard 5-2.4 of the ABA Standards for Criminal Justice Providing Defense Services;
4. Ensure that defense counsel have adequate resources and training to fulfill their obligation to conduct thorough and independent investigation into their clientsâ guilt or innocence in every case, including heightened scrutiny into cases that rely on eye-witness identification, witnesses who receive any benefit in return for their testimony, and confessions by youthful or mentally limited defendants;
5. Require defense counsel to investigate circumstances indicating innocence regardless of the clientâs admissions or statements of facts constituting guilt or the clientâs stated desire to pleas guilty or dispose of the case without trial.
6. Require that defense counsel cooperate fully with successor counsel, including the preservation and transfer of all pertinent records and information.
7. Require defense counsel in all cases, whether or not serious criminal cases, to meet the requirements enumerated in the ABA Standards for Criminal Justice Providing Defense Services.
301 (Criminal Justice Section)
RESOLVED, that, in light of the United States Supreme Court's decisions in United
States v. Booker, 2005 WL 50108 (January 12, 2005), the American Bar Association urges the United States Congress to take the following steps to assure that federal sentencing practices are effective, fair and just and effectuate the goals of sentencing set forth in the Sentencing Reform Act:
1. Permit federal courts to use advisory guidelines while Congress carefully examines
sentencing practices under such guidelines;
2. Forthwith direct the United States Sentencing Commission to assemble and analyze all
available data regarding sentences imposed under Booker, including the information required by 18 U.S.C. § 3553 (c) regarding sentences outside the guidelines, and submit a Report with recommendations to the Congress within 12 months; and
3. While awaiting the Report from the Sentencing Commission on the data, conduct
hearings and solicit input from all constituents within the federal criminal justice system
regarding the wisdom and efficacy of the post-Booker procedure and how it compares to any available legislative options as well as state sentencing guidelines systems; and
FURTHER RESOLVED, that Should Congress determine that use of advisory guidelines
results in unwarranted disparities, Congress should consider, as a substitute for advisory
guidelines, the following actions:
1. Simplify the guidelines either by adding a limited number of critical culpability factors
as elements of each offense to be determined by the jury, or by directing the Commission to identify sentencing factors to be determined by the jury;
2. Revise the 25% rule to allow expanded sentencing ranges derived from the jury
verdicts;
3. Permit downward departures from these ranges under the same standard applicable to
the existing guidelines; and
4. Leave to the Judicial Conference of the United States and the Rules Enabling Act process the task of identifying and proposing any necessary procedural revisions such as bifurcation of proceedings, rules of discovery regarding sentencing factors, and additional jury instructions.
Annual 2005
115A (Criminal Justice Section)
RESOLVED, That the American Bar Association urges federal, state, and territorial governments to identify and attempt to eliminate the causes of erroneous convictions.
FURTHER RESOLVED, That the American Bar Association urges state and local bar associations to assist in the effort to identify and attempt to eliminate the causes of erroneous convictions.
115B (Criminal Justice Section)
RESOLVED, That the American Bar Association encourages federal, state, territorial and local governments, consistent with sound correctional management, law enforcement and national security principles, to afford prison and jail inmates reasonable opportunity to maintain telephonic communication with the free community, and to offer telephone services in the correctional setting with an appropriate range of options at the lowest possible rates.
Midyear 2006
300 (Criminal Justice Section, Commission on Immigration)
RESOLVED, That the American Bar Association urges Congress to restore authority to state and federal sentencing courts to waive a non-citizenâs deportation or removal based upon conviction of a crime, by making a âjudicial recommendation against deportationâ upon a finding at sentencing that removal is unwarranted in the particular case; or, alternatively, to give such waiver authority to an administrative court or agency.
FURTHER RESOLVED, That the American Bar Association urges federal immigration authorities to avoid interpretations of the immigration laws that extend the reach of the âaggravated felonyâ mandatory deportation ground to:
1) low-level state offenses that either are misdemeanors under state law or would be misdemeanors under federal law; and
2) state dispositions that are not considered convictions under state law.
FURTHER RESOLVED, That the American Bar Association urges states, territories, and the federal government to expand the use of the pardon power to provide relief to non-citizens otherwise subject to deportation or removal on grounds related to conviction, where the circumstances of the particular case warrant it; and to
1) establish standards governing applications for pardon to avert removal;
2) ensure that pardons granted for the purpose of averting removal satisfy the standard in the federal immigration laws that such pardons must be âfull and unconditional;â
3) specify the procedures that an individual must follow in order to apply for a pardon to avert removal, and ensure that these procedures are reasonably accessible to all persons; and
4) ensure that applications for pardon to avert removal are processed expeditiously so that non-citizens will not be removed on grounds related to conviction without some prior opportunity for a waiver of that sanction.
302 (Criminal Justice Section, Section of Individual Rights and Responsibilities, Section of International Law, Section of Science and Technology, ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, Association of the Bar of the City of New York, National Conference of Specialized Court Judges, Beverly Hills Bar Association)
RESOLVED, that the American Bar Association calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees;
FURTHER RESOLVED, that the American Bar Association opposes any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with the provisions of the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (FISA), and urges the President, if he believes that FISA is inadequate to safeguard national security, to seek appropriate amendments or new legislation rather than acting without explicit statutory authorization;
FURTHER RESOLVED, that the American Bar Association urges the Congress to affirm that the Authorization for Use of Military Force of September 18, 2001, Pub.L. No. 107â40, 115 Stat. 224 § 2(a) (2001) (AUMF), did not provide a statutory exception to the FISA requirements, and that any such exception can be authorized only through affirmative and explicit congressional action;
FURTHER RESOLVED, that the American Bar Association urges the Congress to conduct a thorough, comprehensive investigation to determine: (a) the nature and extent of electronic surveillance of U.S. persons conducted by any U.S. government agency for foreign intelligence purposes that does not comply with FISA; (b) what basis or bases were advanced (at the time it was initiated and subsequently) for the legality of such surveillance; (c) whether the Congress was properly informed of and consulted as to the surveillance; (d) the nature of the information obtained as a result of the surveillance and whether it was retained or shared with other agencies; and (e) whether this information was used in legal proceedings against any U.S. citizen.
FURTHER RESOLVED, that the American Bar Association urges the Congress to ensure that such proceedings are open to the public and conducted in a fashion that will provide a clear and credible account to the people of the United States, except to the extent the Congress determines that any portions of such proceedings must be closed to prevent the disclosure of classified or other protected information; and
FURTHER RESOLVED, that the American Bar Association urges the Congress to thoroughly review and make recommendations concerning the intelligence oversight process, and urges the President to ensure that the House and Senate are fully and currently informed of all intelligence operations as required by the National Security Act of 1947.
Annual Meeting 2006
#10A (Colorado Bar Association)
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local governments to assure that adequate and appropriate services are made readily available to at-risk youth and their caretakers by ensuring that:
- Community mental health systems serving youth are reinvigorated and significantly expanded to provide greater access to troubled youth and their caretakers;
- Stronger support is given to expanding availability of evidence-based programs for youth and greater investment is made in research to identify additional evidence-based programs worthy of replication and use for at-risk youth;
- A positive youth development perspective is incorporated into services and programs, including opportunities that support young people in developing a sense of competence, usefulness, belonging, and empowerment, through access to developmental services and activities facilitating positive connections among youth and with adults, and also offering young people valuable information and learning experiences to help them choose healthy lifestyles; and
- Needed services and/or treatment should be provided to youth in need of such services by appropriate juvenile justice and child welfare intervention systems without the necessity or requirement of courts exercising jurisdiction over or adjudicating them.
FURTHER RESOLVED, That the American Bar Association urges federal, state, tribal, territorial, and local governments to develop and adequately support permanent interagency and other youth resource coordination mechanisms to help assure that at-risk youth and their caretakers receive timely and effective services through public child welfare, youth services, mental health, schools, and other agencies.
FURTHER RESOLVED, That the American Bar Association urges attorney and state, territorial, tribal, and local bar associations to help develop legal strategies to promote the above objectives while protecting youth rights to confidentiality and privacy, as well as to support government and private investment in coordinated, community-based mental health and other services to at-risk youth and families, available without involvement in juvenile justice or child protection systems.
#10B (NY State Bar, Tort)
Withdrawn
Recommends that prosecutors and other enforcement authorities should not directly or indirectly pressure, request or encourage an entity to refuse to advance, reimburse or indemnify legal fees and expenses of a current or former director, officer, employee or agent of the entity
#107 (Criminal Justice Section)
Approved
RESOLVED, That the American Bar Association adopts the black letter ABA Criminal Justice Standards on DNA Evidence, dated August 2006.
#108A (Homelessness Commission, Criminal Justice Section, Senior Lawyers, SCLAID, etc)
Approved as revised
RESOLVED, That the American Bar Association adopts the following principles for Homeless Court Programs to the extent appropriate for each jurisdiction:
(1) Prosecutors, defense counsel, and the court should agree on which offenses may be resolved in the Homeless Court Program, and approve the criteria for individual participation recognizing that defendant participation in Homeless Court Programs shall be voluntary.
(2) Community-based service providers should establish criteria for individual participation in the Homeless Court Program and screen individuals pursuant to these criteria.
(3) The Homeless Court Program shall not require defendants to waive any protections afforded by due process of law.
(4) All Homeless Court Program participants shall have time for meaningful review of the cases and issues prior to disposition.
(5) The Homeless Court Program process and any disposition therein should recognize homeless participantsâ voluntary efforts to improve their lives and move from the streets toward self-sufficiency, including participation in community-based treatment or services.
(6) Participation in community-based services shall replace sanctions such as fines, public work service and custody.
(7) Defendants who have completed appropriate treatment or services prior to appearing before the Homeless Court shall have minor charges dismissed, and, where appropriate, may have more serious misdemeanor charges before the court reduced or dismissed. Where charges are dismissed, public access to the record should be limited.
#108B (Commission on Homelessness & Poverty, Criminal Justice Section, . . .)
Approved as revised
RESOLVED, That the American Bar Association urges federal agencies to include within the definition of âhomeless personâ individuals who lack a fixed, regular, and adequate nighttime residence, including those who, due to loss of housing, economic hardship, or similar reasons, are sharing the housing of others or living in motels, hotels or camping grounds.
#109 (Standing Committee on Substance Abuse, etc .)
Approved as revised
RESOLVED, That the American Bar Association urges all federal, state, territorial and local legislative bodies and governmental agencies to adopt laws and policies that require health and disability insurers who provide coverage for the treatment of both abuse and dependence on drugs and alcohol to do so in a manner that is based on the most current scientific protocols and standards of care, so as significantly to enhance the likelihood of successful recovery for each patient.
#110 (Commissions on Domestic Violence, Immigration, Women in the Profession, etc.)
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, territorial, local, and tribal governments to enact or to amend domestic violence civil protection order statutes to provide protection to victims who are in a romantic or intimate relationship with the perpetrator of domestic violence or have been in a romantic or intimate relationship with the perpetrator, but do not necessarily have a child with, live with, or are married to the perpetrator of the violence.
#116; (Standing Committee on the Federal Judiciary, Criminal Justice Section . . .)
Approved
RESOLVED, That the American Bar Association urges Congress to amend
28 U.S. C. §1259(3) and (4) to permit discretionary review by the Supreme Court of the United States of decisions rendered by the United States Court of Appeals for the Armed Forces that deny petitions for review of courts-martial convictions or deny extraordinary relief.
#120A (Litigation, Criminal Justice Section )
Approved (207;137 )
RESOLVED, That the American Bar Association recommends that applicable federal, state and territorial rules and statutes governing civil procedure be amended or adopted to protect from discovery draft expert reports and communications between an attorney and a testifying expert relating to an expertâs report, as follows:
(i) an expertâs draft reports should not be required to be produced to an opposing party;
(ii) communications, including notes reflecting communications, between an expert and the attorney who has retained the expert should not be discoverable except on a showing of exceptional circumstances;
(iii) nothing in the preceding paragraph should preclude opposing counsel from obtaining any facts or data the expert is relying on in forming his or her opinion, including that coming from counsel, or from otherwise inquiring fully of an expert into what facts or data the expert considered, whether the expert considered alternative approaches or into the validity of the expertâs opinions.
FURTHER RESOLVED, That the American Bar Association recommends that, until federal, state and territorial rule and statutory amendments are adopted, counsel should enter voluntary stipulations protecting from discovery draft expert reports and communications between attorney and expert relating to an expertâs report.
#120B (Litigation, Criminal Justice Section, . . .)
Approved as revised
RESOLVED, That the American Bar Association urges the United States Government to support the Darfur peace accord signed on May 5, 2006; and to support the work of the International Criminal Court in investigating and prosecuting the individuals responsible for crimes in Darfur, Sudan, the humanitarian work of the United Nations in Darfur, Sudan, the peacekeeping efforts of the African Union, and any eventual peacekeeping efforts of the United Nations in Darfur, Sudan.
FURTHER RESOLVED, That the American Bar Association urges the United States
Congress to enact and the President of the United States to sign into law legislation which would:
(1) block assets and restrict visas of any individual the President of the United States determines is complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur, including the family members or any associates of such individual to whom assets or property of such individual was transferred on or after July 1, 2002;
(2) authorize the President of the United States to provide assistance to support the African Union Mission in Sudan;
(3) encourage the Secretary of State to designate the Janjaweed militia as a foreign terrorist organization under section 219 of the Immigration and Nationality Act; and
(4) encourage the President of the United States to appoint a Presidential Envoy for Sudan to steward efforts to implement the Comprehensive Peace Agreement for Sudan, bring stability and peace to the Darfur region, address instability elsewhere in Sudan and northern Uganda, and pursue a truly comprehensive peace throughout the region.
FURTHER RESOLVED, That the American Bar Association urges the President of the
United States to take action to implement such legislation immediately upon its enactment into law.
#120C (Litigation, Criminal Justice Section, . . .)
Approved
RESOLVED, That the American Bar Association encourages law firms to consider: (a) alternatives to mandatory minimum billing requirements that would reduce undue emphasis on lawyersâ billable hours and permit law firms the flexibility necessary to manage themselves under their own circumstances and more accurately to measure each individualâs contribution to achieving all of the firmâs important goals; and (b) compensation systems that recognize and reward attorneys based on factors in addition to the number of hours they bill to client matters, including pro bono work, community service, mentoring and training, speaking, writing and teaching, and other activities that enhance professional development and standing in the legal profession as a whole.
#120D (Litigation, Criminal Justice Section, . . .)
Approved
RESOLVED, That the American Bar Association recommends that consistent rules be established throughout the federal, state and territorial courts to address how the courts and counsel should resolve issues involving claims of inadvertent disclosure of materials protected by the attorney-client privilege or attorney work product doctrine (collectively âprivilegeâ).
FURTHER RESOLVED, That the American Bar Association recommends that relevant Federal Rules of Evidence and/or Federal Rules of Civil Procedure, and state rules be adopted or amended to provide as follows:
1) A producing party should be required to raise the privileged status of inadvertently disclosed materials within a specified period of days of actually discovering the inadvertent disclosure by giving notice to the other parties and amending its discovery responses to identify the materials and the privileges. The period should commence when the party actually discovers the disclosure has been made, not from when the material was produced.
2) A party receiving notice that any inadvertently disclosed materials have been produced to it should be required to promptly return, sequester or destroy the specified materials and any copies and may not use or disclose the materials until the issue is resolved.
3) Specific grounds for testing the inadvertent disclosure should be set forth and should include the following general provisions:
A) The receiving party should be allowed to challenge the disclosing partyâs claim that the material is privileged.
B) The receiving party should be allowed to challenge the timeliness of the producing partyâs notice recalling the material on a claim of privilege.
C) The receiving party should be allowed to assert that the circumstances surrounding the production or disclosure warrant a finding that the disclosing party has waived any claim of privilege.
4)In deciding whether privilege has been waived, the court should apply the generally accepted multi-factor analysis followed by the majority of federal courts and many state courts that assesses (a) the reasonableness of the precautions taken to prevent inadvertent disclosure; (b) the scope of discovery; (c) the extent of the disclosure; and (d) whether the interests of justice would be served by relieving the party of its error.
#122A (IR&R, Criminal Justice Section, etc.)
Approved
RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures:
1. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.
2. Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.
3. Mental Disorder or Disability after Sentencing
(a) Grounds for Precluding Execution. A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity (i) to make a rational decision to forgo or terminate post-conviction proceedings available to challenge the validity of the conviction or sentence; (ii) to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner's participation; or (iii) to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case. Procedures to be followed in each of these categories of cases are specified in (b) through (d) below.
(b) Procedure in Cases Involving Prisoners Seeking to Forgo or Terminate Post-Conviction Proceedings. If a court finds that a prisoner under sentence of death who wishes to forgo or terminate post-conviction proceedings has a mental disorder or disability that significantly impairs his or her capacity to make a rational decision, the court should permit a next friend acting on the prisoner's behalf to initiate or pursue available remedies to set aside the conviction or death sentence.
(c) Procedure in Cases Involving Prisoners Unable to Assist Counsel in Post-Conviction Proceedings. If a court finds at any time that a prisoner under sentence of death has a mental disorder or disability that significantly impairs his or her capacity to understand or communicate pertinent information, or otherwise to assist counsel, in connection with post-conviction proceedings, and that the prisoner's participation is necessary for a fair resolution of specific claims bearing on the validity of the conviction or death sentence, the court should suspend the proceedings. If the court finds that there is no significant likelihood of restoring the prisoner's capacity to participate in post-conviction proceedings in the foreseeable future, it should reduce the prisoner's sentence to the sentence imposed in capital cases when execution is not an option.
(d) Procedure in Cases Involving Prisoners Unable to Understand the Punishment or its Purpose. If, after challenges to the validity of the conviction and death sentence have been exhausted and execution has been scheduled, a court finds that a prisoner has a mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case, the sentence of death should be reduced to the sentence imposed in capital cases when execution is not an option.
#300A (Commission on Effective Criminal Sanctions; Criminal Justice Section)
WITHDRAWN (See Midyear 2007 #103A on community supervision)
# 300B (Commission on Effective Criminal Sanctions; Criminal Justice Section
WITHDRAWN (see Midyear 2007 #103A on parole/probation violations)
#300C (Commission on Effective Criminal Sanctions; Criminal Justice Section)
WITHDRAWN (see Midyear 2007 #103C on Criminal history records; employment of persons with)
#300D (Commission on Effective Criminal Sanctions; Criminal Justice Section)
WITHDRAWN (See Midyear 2007 #103D on Criminal history records; use of for non-law enforcement purposes)
#300E (Commission on Effective Criminal Sanctions; CJS
WITHDRAWN (See Midyear 2007 #103E re Collateral consequences of convictions, notification of offender)
#300F (Commission on Effective Criminal Sanctions; CJS)
WITHDRAWN (See Midyear 2007 #103F on Training professionals re discretion)
#302A (Task Force on Attorney-Client Privilege, Tennessee Bar, State and Local Bar)
Approved
RESOLVED, That the American Bar Association supports the preservation of the attorney-client privilege and work product doctrine in connection with audits of company financial statements.
FURTHER RESOLVED, That the American Bar Association urges the Securities and Exchange Commission, the Public Company Accounting Oversight Board, the American Institute of Certified Public Accountants, the legal and accounting professions, and other relevant organizations to adopt standards, policies, practices and procedures and take other appropriate steps to ensure that attorney-client privilege and work product protections are preserved throughout the audit process.
#302B (Task Force on Attorney-Client Privilege, Criminal Justice Section)
Approved as revised
RESOLVED, that the American Bar Association opposes government policies, practices and procedures that have the effect of eroding the constitutional and other legal rights of current or former employees, officers, directors or agents (âEmployeesâ) by requiring, encouraging or permitting prosecutors or other enforcement authorities to take into consideration any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation:
- that the organization provided counsel to, or advanced, reimbursed or indemnified the legal fees and expenses of an Employee;
- that the organization entered into or continues to operate under a joint defense, information sharing and common interest agreement with an Employee with whom the organization believes it has a common interest in defending against the investigation;
- that the organization shared its records or other historical information relating to the matter under investigation with an Employee; or
(4) that the organization chose to retain or otherwise declined to sanction an Employee who exercised his or her Fifth Amendment right against self-incrimination in response to a government request for an interview, testimony, or other information.
#304 (Task Force on Presidential Signing Statements and Separation of Powers, Criminal Justice Section, . . .)
Approved as amended
RESOLVED, That the American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority or stating the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;
FURTHER RESOLVED, That the American Bar Association urges the President, if he/she
believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;
FURTHER RESOLVED, That the American Bar Association urges the President to confine any signing statements to his/her views regarding the meaning, purpose and significance of bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs him/her to approve or disapprove each bill in its entirety;
FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation requiring the President promptly to submit to Congress an official copy of all signing
statements he/she issues, and in any instance in which he/she claims the authority, or states the intention,
to disregard or decline to enforce all or part of a law he/she has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth in full the reasons and legal basis for the statement; and further requiring that all such submissions be available in a publicly accessible database; and
FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he/she has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President's claim or interpretation.
#308 SCFJI, SCJI, Litigation, Tort Trial and Insurance; NCFTJ; NCALJ
Unanimously approved by voice vote
RESOLVED, that the ABA opposes legislation such as H.R. 5219 and S. 2678 (109 th Congress) that would establish a statutory Office of Inspector General for the Judicial Branch for the purpose of conducting investigations of matters pertaining to the Judicial Branch, including possible misconduct in office of judges and judicial proceedings.
FURTHER RESOLVED, that the ABA opposes any legislative proposal creating the statutory position of Inspector General for the Judicial Branch that : 1) requires the Chief Justice of the United States to consult with congressional leaders over the appointment of an inspector general; 2) confers on the inspector general broad power to subpoena judges and judicial entities to compel testimony and the production of documents; or 3) require the inspector general to make prompt reports to Congress in open or closed sessions on matters that the inspector general believes require action.
FURTHER RESOLVED, that the ABA applauds the recent efforts of the Judicial Conference of the united States to examine and respond to concerns raised by Congress and the public over judicial adherence to, and oversight of, its rules, guidelines and procedures governing judicial recusal, financial disclosure statements, the Judicial Discipline and Procedures Act and judicial attendance at privately funded, expense-paid seminars.
FURTHER RESOLVED, that the ABA urges the U.S. Supreme Court, the judicial Conference of the United States, and the circuit council of each judicial circuit to strengthen public confidence in the courts by regularly engaging in rigorous oversight of judicial administration activities and judicial ethics and promptly adopting and implementing improvements when necessary.
FURTHER RESOLVED, that the ABA urges Members of Congress and of the Federal Judiciary to confer informally to consider ways to engage in constructive, cooperative and regular dialogue over challenging judicial administration issues and proposed legislation of mutual concern.
Midyear Meeting 2007
#10B (Several state bar associations; Tort Trial and Insurance Practice)
Approved as revised
RESOLVED, That the ABA join in efforts by state, local and territorial bar organizations to defend against attacks on the judiciary and oppose any measure that is proposed by any state legislation, referendum, or ballot initiative that would interfere with or impede the ability of courts to apply independently the law and the Constitution fairly and impartially.
#10C (Bar associations, ABA entities, but not CJS)
Approved as amended
RESOLVED , That the American Bar Association reaffirms its commitment to the core values of the legal profession, including commitment to pro bono provision of legal services to those in need and the commitment to the independence of the profession, provided that this does not negate existing ABA policy regarding any governmental obligation to provide counsel.
FURTHER RESOLVED , That the American Bar Association commends the courageous lawyers who meet their professional responsibility to provide pro bono legal services to disfavored individuals and groups, in selfless dedication to Americaâs commitment to the highest ideals of due process and equal access to justice and in support of the fundamental right to counsel for anyone threatened with deprivation of life or liberty, including those accused of the worst crimes, and against whom public enmity runs deepest.
FURTHER RESOLVED , That the American Bar Association urges that public education efforts be strengthened by the ABA and state, specialty, local and territorial bars to explain that lawyers who volunteer in legal defense of disfavored individuals and groups are performing a vital role under our system of justice, and are worthy of public appreciation and support; and, that if legal assistance is withheld from anyone because of the nature of the accusations made against them, or the unpopularity of their beliefs, that (sic) all of us are at greater risk.
FURTHER RESOLVED , That the American Bar Association condemns any governmental attack on the independence of the profession that encourages clients to exert improper influence over their lawyersâ choice of other clients, or to penalize lawyers for representing unpopular or controversial clients.
FURTHER RESOLVED , That the American Bar Association urges all branches of the United States government, and all other governments within the United States and its territories, to ensure that any lawyers or other policymakers whom they employ refrain from any such governmental attack on the independence of the profession, and to effectively remedy any such attack.
#102A (CJS, Domestic Violence Commission, IR&R, TT&IP)
Approved
RESOLVED, That the American Bar Association urges bar associations and law schools to develop programs that encourage and train lawyers to assist victims of domestic violence with applying for pardon, restoration of legal rights and privileges, relief from other collateral sanctions, and reduction of sentence.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to ensure that judicial, administrative, legislative, and executive authorities consider and expand, as appropriate, the use of measures such as clemency, parole, and reduction of sentence in cases where incarcerated persons were subjected to domestic violence that played a significant role in their offense but the effect of that domestic violence was not fully litigated at trial or sentencing.
FURTHER RESOLVED, That the American Bar Association urges federal, sate, local, territorial and tribal governments to establish re-entry services for domestic violence victims released from incarceration.
#102B (CJS, IR&R)
Approved
RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to ensure that prisoners are afforded meaningful access to the judicial process to vindicate their constitutional and other legal rights and are subject to procedures applicable to the general public when bringing lawsuits.
FURTHER RESOLVED, That the American Bar Association urges Congress to repeal or amend specified provisions of the Prison Litigation Reform Act (PLRA) as follows:
- Repeal the requirement that prisoners (including committed and detained juveniles and pretrial detainees, as well as sentenced prisoners) suffer a physical injury in order to recover for mental or emotional injuries caused by their subjection to cruel and unusual punishment or other illegal conduct;
- Amend the requirement for exhaustion of administrative remedies to require that a prisoner who has not exhausted administrative remedies at the time a lawsuit is filed be permitted to pursue the claim through an administrative- remedy process, with the lawsuit stayed for up to 90 days pending the administrative processing of the claim;
- Repeal the restrictions on the equitable authority of federal courts in conditions-of-confinement cases;
4. Amend the PLRA to allow prisoners who prevail on civil rights claims to recover attorney's fees on the same basis as the general public in civil rights cases;
- Repeal the provisions extending the PLRA to juveniles confined in juvenile detention and correctional facilities; and
6. Repeal the filing fee provisions that apply only to prisoners.
FURTHER RESOLVED, That the American Bar Association urges Congress to hold hearings to determine if any other provisions of the PLRA should be repealed or modified and that other legislatures having comparable provisions do the same.
FURTHER RESOLVED, That the American Bar Association urges Congress to hold hearings to determine what other steps the federal government may take to foster the just resolution of prisoner grievances in the nation's prisons, jails, and juvenile detention and correctional facilities.
#103A (CJS, Comm. on Effective Sanctions, NDAA, NLADA, IR&R, SC on Substance Abuse)
Approved
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop, implement, and fund programs that prosecutors and other criminal justice professionals can utilize to enable an offender to be placed under community supervision in appropriate cases. While the qualifications for entry into the programs will vary among jurisdictions, generally the programs should be available when the offender:
- poses no substantial threat to the community;
- is not charged with a predatory crime, a crime involving substantial violence, a crime involving large scale drug trafficking, or a crime of equivalent gravity;
- has no prior criminal history that makes community supervision an inappropriate sanction; and
- is not currently on parole or probation, unless the supervising authority specifically consents.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop, and to support and fund prosecutors and others seeking to develop, deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record for offenders who are deemed appropriate for community supervision pursuant to the criteria set forth above.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop, support and fund programs that offer community-based treatment alternatives to incarceration, including inpatient treatment, to those offenders whose crimes are associated with substance abuse and/or mental illness; and for whom diversion has been deemed appropriate pursuant to the criteria set forth above.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop, support and fund prosecutors and other criminal justice professionals seeking to develop programs to train law enforcement officers to recognize the signs and symptoms of mental illness in order to facilitate the appropriate resolution by the police in those situations.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to encourage prosecutors and defenders, in close cooperation with the courts, to create working groups that include other stakeholders in the justice system to develop, review, monitor, and improve deferred adjudication/ deferred sentencing/diversion options.
#103B (CJS, Comm. Effective Sanctions, NDAA, NLADA, IR&R, SC on Substance Abuse)
Approved
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop and implement meaningful graduated sanctions for violations of parole or probation as alternatives to incarceration. Incarceration may be appropriate when:
- an offender commits a new crime or engages in repeated violations;
- lesser sanctions, including appropriate treatment options, have not been effective; or
- the offender poses a danger to the community.
In those cases where an individual is sent to jail or prison as a sanction for a violation of probation or parole, the period of incarceration should be that reasonably necessary to modify the individualâs behavior and deter future violations.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to distinguish between probation/parole violators who would benefit from community supervision and those who would not, and to deploy community supervision resources accordingly.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to provide adequate resources and funding to ensure that the quality and intensity of supervision for offenders is significantly increased. Manageable case-loads for probation and parole officers ensure that sanctions imposed in lieu of incarceration are meaningful; reduce the likelihood of recidivism; and increase the chances for successful rehabilitation.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments, to create standards for the performance of probation or parole officers that will consider, in addition to other appropriate factors, the number of individuals under an officerâs supervision who successfully complete supervision, as well as those whose probation or parole is appropriately revoked, taking into account the nature of the officerâs caseload.
#103C (CJS, Comm Effective Criminal Sanctions, NLADA, SC Substance Abuse, IR&R)
Approved
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop policy on the employment of persons with a criminal record by government agencies, and the contractors and vendors who do business with those agencies. Professional and occupational licensing authorities should develop similar policy for the issuance of licenses. Except in cases where there is an absolute statutory prohibition on employment or licensure of persons because of a criminal conviction, as permitted by Standard 19-2.2 of the ABA Standards for Criminal Justice on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, and that prohibition has not been waived or modified, the conduct underlying the conviction should be considered disqualifying only if it substantially relates to the particular employment or license, or presents a present threat to public safety, consistent with Criminal Justice Standard 19-3.1 . Jurisdictions should develop criteria for determining when such a substantial relationship exists.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local legislatures to compile an inventory of all collateral sanctions relating to employment and licensure in the law codes for which they are responsible; where an absolute statutory disqualification cannot be justified, the legislature should either eliminate it, or modify it to authorize the employer or licensing authority to waive the disqualification on a case-by-case basis. Jurisdictions should also inventory all statutes and regulations specifically authorizing consideration of conviction as a basis for discretionary disqualification from employment or licensure.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to require that each government agency, and professional and occupational licensing authority, take the following steps:
- Conduct an inventory of employment and licensing restrictions and disqualifications based upon a criminal record for each occupation under the agencyâs jurisdiction;
- Eliminate or modify, to the extent authorized, any such restrictions or disqualifications that are either (i) not substantially related to the particular employment or (ii) not designed to protect the public safety;
- Provide for a case-by-case exemption or waiver process to give persons with a criminal record an opportunity to make a showing of their fitness for the employment or license at issue, and provide a statement of reasons in writing if the opportunity is denied because of the conviction; and
- Provide for judicial or administrative review of a decision to deny employment or licensure based upon a personâs criminal record.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to authorize a court or administrative agency to enter an order waiving, modifying, or granting relief from a particular collateral sanction, in order to facilitate an offenderâs reentry into the community, in accordance with Standard 19-2.5(a). Such an order should be available upon request at the time of sentencing or release from imprisonment, or at any time thereafter, upon a finding that such relief would be consistent with the rehabilitation of the offender and the safety of the public, and in the public interest. Where a sentence has not been fully discharged, relief may be temporary or conditional, and it may be enlarged or modified by the court or administrative agency at any time upon a showing of good cause. Such an order will not preclude employers or licensing boards from considering the conduct underlying the conviction as a factor in discretionary employment and licensing decisions, if that conduct is substantially related to the particular employment or license sought.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to establish a process whereby a convicted person may, upon completion of sentence or at some reasonable time thereafter, obtain a judicial or administrative order relieving the person of all collateral sanctions imposed by the law of that jurisdiction, as provided by Standard 19-2.5(c). Such an order should be predicated upon a finding that the person has conducted himself in a law-abiding and productive manner since the conviction, and should create a âpresumption of fitnessâ that should be taken into account in all discretionary decision-making by public employers and licensing boards, even if the conduct underlying the conviction is substantially related to the particular employment or license sought. Such an order may be conditional upon good conduct where an offender is still under supervision, and may leave in place a specific collateral sanction if appropriate.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to work with private employer groups to develop job opportunities for people with a criminal record, and incentives for private employers to hire people with criminal records.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to work with employers and others who have a legitimate need for access to criminal record information to permit its more efficient use, so as to encourage the employment of persons with criminal records where appropriate. In particular, they should:
- to the extent constitutionally permissible, require all agencies and employers seeking access to a personâs criminal record to rely upon an officially approved system of records;
- except in cases where there is a statutory requirement that an agency or employer conduct a criminal background check, require non-law enforcement agencies and employers seeking access to an individualâs criminal record to demonstrate that the public interest in receiving such information clearly outweighs the individualâs interest in security and privacy.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to make evidence of an individualâs conviction inadmissible in any action alleging an employerâs negligence or wrongful conduct based on hiring as long as the employer relied on a judicial or administrative order granting relief from statutory or regulatory barriers to employment or licensure based upon conviction.
#103D (CJS, Comm. Effective Sanctions, NDAA, NLADA, YLD, SC on Substance Abuse)
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop policies governing access to and use of criminal records for non-law enforcement purposes that would balance the publicâs right to information against the governmentâs interest in encouraging successful offender reentry and reintegration.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop systemic reporting systems that will maximize reliability, integrity , authenticity and accuracy of criminal records. Where records are to be made available for non-law enforcement purposes, jurisdictions should implement procedures to present records to the lay reader in a comprehensible form.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to develop and implement procedures to permit an individual or the government to challenge the accuracy of criminal history record information in an official system of criminal records. Any record determined to be inaccurate or incomplete should be promptly corrected, and all determinations should be reported to the individual and the government in a timely fashion.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to establish standards and appropriate controls to ensure accuracy and reliability of criminal records. Private companies should be restricted to the extent legally possible from reporting records that have been sealed or expunged. If such companies are permitted to reveal a sealed or expunged record, they should be required at the same time to report the fact that the record has been sealed or expunged and the legal effect of such action.
#103E (CJS, Comm. Effective Sanctions, NLADA, SC on Immigration, SC on Substance Abuse, IR&R)
Approved
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to assist defense counsel in advising clients of the collateral consequences of criminal convictions during representation.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial, and local governments to encourage prosecutors to inform themselves of the collateral consequences that may apply in particular cases.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to authorize and fund public defender services, legal aid services, and/or other legal service providers, to provide offenders with appropriate assistance in removing or neutralizing the collateral consequences of a criminal record.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to require prison officials to ensure that prisoners are informed prior to release about the process for removing or neutralizing the collateral consequences of a criminal record, and to require probation and parole officials similarly to advise persons under their supervision about this process.
#103F (CJS, Comm. Effective Criminal Sanctions, NDAA, NLADA)
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments, and licensing authorities to support professional associations and organizations in order to develop programs to train all criminal justice professionals -- including judges, prosecutors, defense counsel, probation and parole officers, and correctional officials -- in understanding, adopting and utilizing factors that promote the sound exercise of their discretion.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments and licensing authorities to recognize that such training should be credited towards continuing education program requirements.
#104 (CJS and numerous other ABA entities, bar associations, etc.)
Approved as revised
RESOLVED, That the American Bar Association adopts the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, dated February 2007.
FURTHER RESOLVED, That the American Bar Association amends Comment [14] to Rule 5.5 of the Model Rules of Professional Conduct.
Model Court Rule on Provision of Legal Services Following Determination of Major Disaster
(February 2007)
Rule ___. Provision of Legal Services Following Determination of Major Disaster
(a) Determination of existence of major disaster. Solely for purposes of this Rule, this Court shall determine when an emergency affecting the justice system, as a result of a natural or other major disaster , has occurred in:
(1) this jurisdiction and whether the emergency caused by the major disaster affects the entirety or only a part of this jurisdiction, or
(2) another jurisdiction but only after such a determination and its geographical scope have been made by the highest court of that jurisdiction. The authority to engage in the temporary practice of law in this jurisdiction pursuant to paragraph (c) shall extend only to lawyers who principally practice in the area of such other jurisdiction determined to have suffered a major disaster causing an emergency affecting the justice system and the provision of legal services.
(b) Temporary practice in this jurisdiction following major disaster. Following the determination of an emergency affecting the justice system in this jurisdiction pursuant to paragraph (a) of this Rule, or a determination that persons displaced by a major disaster in another jurisdiction and residing in this jurisdiction are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is required to help provide such assistance, a lawyer authorized to practice law in another United States jurisdiction, and not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. Such legal services must be provided on a pro bono basis without compensation, expectation of compensation or other direct or indirect pecuniary gain to the lawyer. Such legal services shall be assigned and supervised through an established not-for-profit bar association, pro bono program or legal services program or through such organization(s) specifically designated by this Court.
(c) Temporary practice in this jurisdiction following major disaster in another jurisdiction. Following the determination of a major disaster in another United States jurisdiction, a lawyer who is authorized to practice law and who principally practices in that affected jurisdiction, and who is not disbarred, suspended from practice or otherwise restricted from practice in any jurisdiction, may provide legal services in this jurisdiction on a temporary basis. Those legal services must arise out of and be reasonably related to that lawyerâs practice of law in the jurisdiction, or area of such other jurisdiction, where the major disaster occurred.
(d) Duration of authority for temporary practice. The authority to practice law in this jurisdiction granted by paragraph (b) of this Rule shall end when this Court determines that the conditions caused by the major disaster in this jurisdiction have ended except that a lawyer then representing clients in this jurisdiction pursuant to paragraph (b) is authorized to continue the provision of legal services for such time as is reasonably necessary to complete the representation, but the lawyer shall not thereafter accept new clients. The authority to practice law in this jurisdiction granted by paragraph (c) of this Rule shall end [60] days after this Court declares that the conditions caused by the major disaster in the affected jurisdiction have ended.
(e) Court appearances. The authority granted by this Rule does not include appearances in court except:
(1) pursuant to that court's pro hac vice admission rule and, if such authority is granted, any fees for such admission shall be waived; or
(2) if this Court, in any determination made under paragraph (a), grants blanket permission to appear in all or designated courts of this jurisdiction to lawyers providing legal services pursuant to paragraph (b). If such an authorization is included, any pro hac vice admission fees shall be waived.
(f) Disciplinary authority and registration requirement. Lawyers providing legal services in this jurisdiction pursuant to paragraphs (b) or (c) are subject to this Courtâs disciplinary authority and the Rules of Professional Conduct of this jurisdiction as provided in Rule 8.5 of the Rules of Professional Conduct. Lawyers providing legal services in this jurisdiction under paragraphs (b) or (c) shall, within 30 days from the commencement of the provision of legal services, file a registration statement with the Clerk of this Court. The registration statement shall be in a form prescribed by this Court. Any lawyer who provides legal services pursuant to this Rule shall not be considered to be engaged in the unlawful practice of law in this jurisdiction.
(g) Notification to clients. Lawyers authorized to practice law in another United States jurisdiction who provide legal services pursuant to this Rule shall inform clients in this jurisdiction of the jurisdiction in which they are authorized to practice law, any limits of that authorization, and that they are not authorized to practice law in this jurisdiction except as permitted by this Rule. They shall not state or imply to any person that they are otherwise authorized to practice law in this jurisdiction.
[Note: Comment to this Rule, as amended, is not included here; see http://www.americanbar.org/content/dam/aba/migrated/leadership/2007/midyear/docs/journal/DAILYJOURNALFINALVERSION.doc
ABA Rules of Professional Conduct
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW
â¦. [14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyerâs practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyerâs client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyerâs work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the clientâs activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyerâs recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law. Lawyers desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a major disaster, but in which they are not otherwise authorized to practice law, as well as lawyers from the affected jurisdiction who seek to practice law temporarily in another jurisdiction, but in which they are not otherwise authorized to practice law, should consult the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster .
â¦
#105B (NCCUSL; Family Law, YLD)
Approved
RESOLVED, That the American Bar Association approves the Uniform Child Abduction Prevention Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2006 as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.
#106 (Comm. on Homelessness; Comm. M&PDL; SCLAID, Forum on Housing)
Approved
RESOLVED, That the American Bar Association opposes the enactment of, and supports the repeal of, laws and policies that:
- punish persons experiencing homelessness for carrying out otherwise non-criminal life-sustaining practices or acts in public spaces, such as eating, sitting, sleeping, or camping, when no alternative private spaces are available;
- are enforced against persons experiencing homelessness to a greater extent than others who engage in the same practice or act; or
- punish persons for providing food, shelter, or other critical assistance to people who are homeless.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local courts, prosecutors, defense counsel, and probation and parole officers, in carrying out their respective functions, to consider the problems faced by homeless individuals who may be forced to engage in otherwise non-criminal life-sustaining practices in public spaces because no alternative private spaces are available.
FURTHER RESOLVED, That the American Bar Association urges national, state, territorial and local bar associations to work in cooperation with courts, lawmakers, law enforcement, advocates, service providers and people experiencing homelessness to:
1. revise laws and policies to recognize the problems faced by the homeless when the demand for shelter, housing and services exceeds the supply; and
2. support efforts to increase shelter, housing and services to adequately address the needs
of homeless individuals .
#107 (CJS, SC on Gun Violence, TT&IP, LA County Bar Assn.)
Approved
RESOLVED, That the American Bar Association supports the traditional property rights of private employers and other private property owners to exclude from the workplace and other private property, persons in possession of firearms or other weapons and opposes federal, state, territorial and local legislation that abrogates those rights.
#114 (CJS, Comm. Youth at Risk, etc.)
Approved
RESOLVED, That the American Bar Association urges state, territorial, and tribal legislatures to enact laws that require the licensing, regulating, and monitoring of residential treatment facilities that are not funded by public or government systems, but are privately-operated overnight facilities that offer treatment to at-risk children and youth under age 18 for emotional, behavioral, educational, substance abuse, and social issues and problems, including strenuous athletic, mental health, and tough love programs. This legislation should:
- Require licensure of, or otherwise regulate, private residential treatment facilities by defining clearly which programs must comply with the statute and impose minimum legal requirements to operate and maintain them, including standards regarding staff qualifications and residentsâ physical and emotional safety, educational, mental health, and other treatment needs.
- Require government monitoring and enforcement of the operational standards outlined in the statute.
- Promote the preferred use of appropriate in-home and community-based prevention and intervention programs for at-risk children and youth by requiring enhanced governmental support that provides families with better access to these programs.
FURTHER RESOLVED, That the American Bar Association urges the Congress to enact legislation that would assure the safety of American children and youth placed in U.S-owned, but foreign-based unregulated private residential treatment facilities by requiring U.S. federal agencies to work with foreign governments to monitor such facilities regularly.
#200 (Jt. Comm. to Evaluate the Model Code of Judicial Conduct, etc. but not CJS)
Approved as revised
RESOLVED, That the American Bar Association adopts the revised Model Code of Judicial Conduct, dated February 2007
[Note: The revised Code is not included here; see http://www.americanbar.org/content/dam/aba/migrated/leadership/2007/midyear/docs/journal/DAILYJOURNALFINALVERSION.doc or cjsmisc/cjspolicy/ResolutionsApproved]
#301 (CJS)
Approved
(FRCP Rule 29 re mid-trial acquittals& double jeopardy)
RESOLVED, That the American Bar Association opposes any amendments to the Federal Rules of Criminal Procedure that would eliminate the authority of federal district judges to enter judgments of acquittal during trial.
FURTHER RESOLVED: that the American Bar Association opposes any amendment o the Federal Rules of Criminal Procedure that would require the accused to waive his or her Fifth Amendment Double Jeopardy rights as a condition of seeking a judgment of acquittal during trial.
Annual Meeting 2007
#10C (Bar Association of the District of Columbia)
Approved
RESOLVED, that the American Bar Association supports the principle that the appointment, retention, and replacement of United States Attorneys and career government attorneys and the exercise of their professional judgment and discretion, should be insulated from improper political considerations.
#104C Commission on Youth at Risk; Commission on Homelessness and Poverty
Approved
RESOLVED, That the American Bar Association urges state, local, territorial, and tribal jurisdictions to pass laws and support policies and programs that divert alleged juvenile status offenders from court jurisdiction that:
(1) Mandate the development and implementation of targeted evidence-based programs that provide juvenile, family-focused, and strength-based early intervention and pre-court prevention services and treatment to alleged juvenile status offenders and their families; and
(2) Promote the development of gender-responsive programs, treatment, and services for alleged juvenile status offenders.
FURTHER RESOLVED, That the American Bar Association urges Congress to make the availability of federal funds contingent on compliance with the following requirements related to juvenile status offenders:
(1) Articulate minimum guidelines with which states, territories, and tribal jurisdictions must comply in implementing early intervention and diversion programs for alleged juvenile status offenders. These programs should be evidence-based, gender-responsive, family and youth-focused and attempt to exhaust voluntary treatment and services to avoid court involvement and out-of-home placement;
(2) Expand and support the ability of state, local, territorial, and tribal youth-serving social service agencies to be a timely first responder to situations involving juvenile status offenders and provide effective services and treatment to both alleged and adjudicated juvenile status offenders; and
(3) Promote community-based services to alleged and adjudicated status offenders and families in their homes, communities, or in respite, foster, group, or staff-secure settings, if necessary for the protection and safety of the juvenile.
#106A Standing Cmte on Substance Abuse; Commission on Lawyer Assistance Programs; Commission on Mental and Physical Disability Law
Approved
RESOLVED, That the American Bar Association affirms the principle that dependence on alcohol or other drugs is a disease, supports the principle that insurance coverage for the treatment of alcohol and drug disorders should be at parity with that for other diseases, and urges that:
1. All federal, state, territorial, tribal and local legislative bodies and governmental agencies repeal laws and discontinue policies and practices that allow health and disability insurers to provide coverage for the treatment of such disorders that is not at parity with coverage for other diseases.
2. States with mandated benefit laws that do provide coverage for the treatment of such disorders that is at parity with coverage for other diseases should establish policies and practices, which ensure that such laws are enforced.
3. The federal government should require health and disability insurers regulated under the Employee Retirement Income Security Act of 1974 to provide coverage for the treatment of such disorders in a manner that is at parity with coverage for other diseases and which preserves state laws without limiting the scope of their coverage.
#109 Commissions on Domestic Violence; Immigration; General Practice, etc.
Approved as revised
RESOLVED, That the American Bar Association adopts the black letter Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases, including the Preface, dated August 2007.
#110A Task Force on International Rule of Law; etc., CJS
Approved
RESOLVED, That the American Bar Association urges governments, businesses,
nongovernmental organizations and other organizations to consider and integrate Rule of Law
initiatives with global environmental issues.
#110C Task Force on International Rule of Law; etc., CJS
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, local, territorial and tribal governments to pass legislation, authorize funding, and appropriate funding that strengthens protection and assistance for victims of trafficking in persons within the united States or abroad, as well as bolsters prevention efforts including measures to:
1. Provide emergency assistance and the prompt appointment of guardians ad litem for child victims of trafficking;
2. Ensure that law enforcement agencies promptly provide all trafficking victims who are willing to cooperate with those agencies with a certification/endorsement to that effect;
3. Exclude requirements imposed on visa applicants to (who?) cooperate with law enforcement to be physically present in the United States, and to show âextreme hardshipâ upon removal from the United States;
4. Provide an exception to the âgood moral characterâ requirement for victims of trafficking and their family members when the applicantâs conduct at issue is incident to or relates to the trafficking and allowing them to apply for permanent residence as soon as they are granted T-visas;
5. Support funding for legal assistance for trafficking victims in criminal, civil, immigration cases and other trafficking related matters;
6. Increase resources for the investigation and prosecution of traffickers, as well as for the protection and assistance of victims and their family members within the United States and abroad;
7. Protect the economic and civil rights of the most vulnerable populations to trafficking and provide them with access to education, skills training, and financial assistance programs;
8. Increase resources to promote the education of law enforcement, immigration officials, and other government officials on the trafficking issue and foster the development of guidelines, policies, and procedures for protecting victims, and investigating and prosecuting trafficking matters; and
9. Support funding for education campaigns and programs directed to judges, attorneys, law students, legal services providers, legislators, government officials, the media, and others, that create awareness about laws and policies against trafficking in persons.
FURTHER RESOLVED, That the American Bar Association encourage efforts by state, local, territorial, tribal, specialty, and foreign bar associations to engage members of the legal profession in raising awareness of trafficking in persons in their communities and in providing pro bono legal services to victims of trafficking.
#110D Task Force on International Law Symposium; Rule of Law Initiative
Approved as revised
RESOLVED, That the American Bar Association adopts the Principles on Judicial Independence and Fair and Impartial Courts, dated August 2007.
#113 Litigation; CJS
Approved as revised
RESOLVED, That the American Bar Association adopts the following principles that govern the planning, preparation and training for responses to a major disaster and urges their adoption by appropriate entities;
Principle 1 The rule of law must be preserved when a major disaster occurs.
Principle 2 The preservation of the rule of law requires proactive planning, preparation and training before a major disaster strikes.
Principle 3 All those involved in the justice system must work collaboratively to assure the ongoing integrity of the system in times of a major disaster.
Principle 4 In times of a major disaster the requirements of the Constitution must be respected, particularly with respect to criminal prosecutions.
Principle 5 Where the acts or omissions of individuals or organizations result in a major disaster, or exacerbate a natural major disaster, the executive and legislative branches of federal or state government should consider establishing an independent commission of inquiry to examine the reasons for and consequences of such acts or omissions.
Principle 6 To the fullest extent permitted by law persons affected by a major disaster should be compensated for their losses through insurance coverage and the operation of the judicial system.
Principle 7 Government payment of compensation or additional assistance to persons affected by a major disaster should be considered when government is either implicated in the major disaster or public authorities determine that it is in the public interest to do so. Principles of equal treatment, due process and transparency should govern the distribution of compensation and disaster assistance.
Principle 8 Government assistance mandated authorized by law should be distributed in an expeditious and efficient manner consistent with principles of equal treatment, due process and transparency.
Principle 9 Charitable assistance to persons affected by a major disaster should be encouraged and benefits to persons affected by a major disaster should be maximized.
Principle 10 Federal, state, territorial, tribal and local governments should work with each other and with the public and private sectors to plan, prepare and train for a major disaster. Such efforts should focus on means to preserve order, protect vulnerable populations and insure adequate communications and assure continuity of operations of business and government.
Principle 11 To the extent feasible, attorneys should provide emergency free legal services to those affected by a major disaster to address their unmet basic legal needs and should provide ongoing pro bono services to those who are not able to obtain or pay for services on a fee basis.
Principle 12 State, local and territorial Bars should educate their members to plan, prepare and train for a major disaster, including information enabling attorneys to assure the continuity of their operations following a disaster, while maintaining the confidentiality and security of the clientsâ paper and electronic files and records.
#115 Public Contract Law; various bar associations; CJS
Unanimously approved
RESOLVED, That the American Bar Association urges all bar associations and other appropriate regulatory bodies to adopt a policy that provides for the waiver or suspension of association dues, CLE requirements and other membership obligations for members who are serving in the U.S. Armed Forces and are performing services in a Combat Zone as designated by an Executive Order of the President of the United States. Under such policy, a waiver or suspension may be requested by the member or by an individual authorized by the member, and membership dues, CLE requirements and other membership obligations will be re-activated upon the memberâs release from duty in a Combat Zone. Suspension or waiver of oneâs general membership obligations does not relieve a member of his or her duty to meet the barâs ethical requirements.
#116A IR&R
Approved as revised
RESOLVED, That the American Bar Association supports procedures and standards designed to ensure that whenever possible, federal civil cases are not dismissed based solely on the state secrets privilege; and
FURTHER RESOLVED, That in furtherance of this objective the American Bar Association urges congress to enact legislation governing federal civil cases implicating the state secrets privilege (including cases in which the government is an original party or an intervenor) that:
(a) Permits the government to plead the privilege in its answer to particular allegations in the complaint without admitting or denying those allegations, and without having adverse inferences drawn against the government for doing so;
(b) Requires the government to provide a full and complete explanation of its privilege claims and to make available for in camera review the evidence the government claims is subject to the privilege;
(c) Requires a judicial assessment of the legitimacy of the governmentâs privilege claims and deems evidence privileged only if the court finds, based on specific facts, that the government has reasonably determined that disclosure of the evidence would be significantly detrimental or injurious to the national defense or to cause substantial injury to the diplomatic relations of the United States;
(d) Permits the discovery of non-privileged evidence that may tend to prove the plaintiffâs claim or the defendantâs defense, provided that such evidence can be effectively segregated from privileged evidence, and where appropriate, provides for protective orders, in camera hearings, special masters to assist (including when the claim of privilege involves voluminous records), or other measures where necessary to protect the governmentâs legitimate national security interests;
(e) Requires the government to produce a non-privileged substitute for privileged evidence, consisting of a summary of the privileged evidence, a version of the evidence with privileged information redacted , or a statement admitting relevant facts that the privileged evidence would tend to prove, provided that:
(i) The court finds that the evidence is essential to prove a claim or defense in the case;
(ii) The court finds that it is possible, without revealing privileged evidence, for the government to produce a substitute that provides a substantially equivalent opportunity to litigate the claim or defense as would the privileged evidence; and
(iii) In cases in which the government is a party asserting a claim or defense that implicates the privilege, the government is given the opportunity to elect between producing the non-privileged substitute and conceding the claim or defense to which the privileged evidence pertains;
(f) Provides that a ruling on a motion to dismiss, or for summary judgment, based on the state secrets privilege be deferred until the parties complete discovery of facts relevant to the motion and the court resolves any privilege claims asserted as to those facts under the procedures described above, except when the court finds that there is no credible basis for disputing that the state secrets claim inevitably will require dismissal;
(g) Provides that, after the court takes these steps and reviews evidence proffered by both parties, judgment for the defendant based on the state secrets privilege is denied if the court finds that the plaintiff is able to prove a prima facie case with non-privileged evidence (including non-privileged evidence from sources outside the U.S. government), unless the court also finds, following in camera review, that the defendantâs ability to defend against the plaintiffâs case would be substantially impaired because the defendant is unable to present specific privileged evidence; and
(h) Entitles the government to take an expedited interlocutory appeal from a district court decision authorizing the disclosure of evidence subject to a claim under the state secrets privilege, imposing sanctions for nondisclosure of such evidence, or refusing a protective order to prevent disclosure of such evidence.
#122 CJS
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to maintain the Medicaid eligibility of otherwiseâeligible incarcerated persons to provide continuity of Medicaid eligibility to persons newlyâreleased from custody.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to suspend, rather than terminate, the Medicaid enrollment of persons who become incarcerated.
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Midyear Meeting 2008
10D - Supports the Restoration of the Rule of Law in Pakistan and Expresses Solidarity with the Pakistani Legal Profession
(Submitted by New York State Bar Association; co-sponsored by CJS . . .) Unanimously approved as revised
RESOLVED, that the American Bar Association hereby expresses its support for and solidarity with the Pakistani bar and bench; and
FURTHER RESOLVED, that given the importance of an independent bar, an independent judiciary, and a just constitution as cornerstones of the rule of law, the American Bar Association calls upon the President of Pakistan to restore Pakistanâs constitution as it existed before the November 3, 2007, emergency decree; reinstate Pakistanâs Supreme Court justices and high court judges who were removed from office and refused to take oaths of loyalty to the executive branch; and release all judges, lawyers and other people who were wrongly arrested during the state of emergency.
102B - Advocates Legal Assistance Programs for Identity Theft Victims
(Submitted by Administrative Law and CJS) Approved as revised
RESOLVED, That the American Bar Association urges national, federal, state, tribal, territorial, and local bar associations, in cooperation with state and local pro bono, lawyer referral, and legal aid programs, to establish programs to assist or provide legal representation for victims of identity theft who need assistance in recovery from the crime.
105A - Urges Vigorous Prosecution of Elder Abuse, Exploitation
(Submitted by CJS) Approved
RESOLVED, That the American Bar Association urges federal, state, local, tribal and territorial governments and their prosecutors to vigorously prosecute cases of elder abuse, neglect, and financial exploitation.
FURTHER RESOLVED, That the American Bar Association urges federal, state, tribal, local, and territorial governments:
1. to create, whenever practical, special elder abuse units within the prosecutor's office or designate a specially trained prosecutor to handle elder abuse cases;
2. to provide training of prosecutors whenever practical on an individual basis in the identification, investigation, and prosecution of elder abuse, neglect, and financial exploitation and supports the formation of a National Center for the Prosecution of Elder Abuse, Neglect, and Exploitation;
3. to ensure that the victim assistance/services program within the staffing structure of their offices develop policies, procedures and funding for providing specialized victim services to the elder population to address the unique needs of elder abuse victims;
4. to adopt a multidisciplinary team approach to prosecuting elder abuse cases including individuals and agencies from the medical and financial fields, public health, service providers and law enforcement as appropriate, in a team effort to investigate, prevent, and prosecute elder abuse crimes with prosecutors taking the leadership role on these teams;
5. to support the prosecutor's role in forming and encouraging the growth of community-based and professional organizations that are interested in the issue of elder abuse prevention and the use of all available resources by prosecutors to educate the public about elder abuse, specifically, the warning signs and how to become more involved in reporting and preventing abuse, and assisting victims of abuse;
6. to review current criminal statutes dealing specifically with the physical abuse, sexual assault, neglect and financial exploitation of elders and assess their ability to meet the needs of elder victims and the types of crimes committed against them;
7. to fund and support public and professional education about elder abuse, including the laws regarding and procedures for reporting suspected elder abuse to appropriate government agencies, including adult protective services and law enforcement; and
8. to develop special procedures and evidentiary rules where necessary to meet the needs of elder abuse victims.
105B - Amends Model Rules of Professional Conduct in Regard to New Evidence
(Submitted by CJS) Approved
RESOLVED, That Rule 3.8 of the Model Rules of Professional Conduct be amended to add new paragraphs (g) and (h) as follows:
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutorâs jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutorâs jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
FURTHER RESOLVED, That the Comment [1] to 3.8 of the Model Rules of Professional Conduct be amended as follows:
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the sovereignty may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.
FURTHER RESOLVED, that the Comment to 3.8 of the Model Rules of Professional Conduct be amended by adding the following new paragraphs:
[7] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutorâs jurisdiction was convicted of a crime that the person did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutorâs jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or make reasonable efforts to cause another appropriate authority to undertake the necessary investigation, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must be made through the defendantâs counsel, and, in the case of an unrepresented defendant, would ordinarily be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.
[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the defendant was convicted of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.
[9] A prosecutorâs independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.
105C - Advocates Balance of Interests in Sentencing Youthful Offenders
(Submitted by CJS) Approved
RESOLVED, That the American Bar Association urges federal, state, tribal, local and territorial governments to authorize and implement sentencing laws and procedures that both protect public safety and appropriately recognize the mitigating considerations of age and maturity of youthful offenders (i.e., those under age 18 at the time of their offense who are subject to adult penalties upon conviction) based on the following principles:
1. Sentences for youthful offenders should generally be less punitive than sentences for those age 18 and older who have committed comparable offenses;
2. Sentences for youthful offenders should recognize key mitigating considerations particularly relevant to their youthful status, including those found by the United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 567-570 (2005), as well as the seriousness of the offense and the delinquent and criminal history of the offender; and
3. Youthful offenders should generally be eligible for parole or other early release consideration at a reasonable point during their sentence; and, if denied, should be reconsidered for parole or early release periodically thereafter.
105D - Adopts ABA Criminal Justice Standards on Prosecutorial Investigations
(Submitted by CJS) Approved as revised
RESOLVED, That the American Bar Association adopts the black letter ABA Criminal Justice Standards on Prosecutorial Investigations, dated February 2008, to supplement the ABA Criminal Justice Standards on the Prosecution Function.
108 - Urges Provision of Legal Services to Veterans and Active Military to Obtain Healthcare Benefits and Services
(Submitted by Litigation; co-sponsored by CJS, . . .) Approved
RESOLVED, That the American Bar Association urges Congress to enact legislation, like the Veterans Advocacy Act of 2007, which promotes the provision of legal services to veterans and members of the Armed Forces to assist them in obtaining the full range of health care, benefits and services to which they are lawfully entitled.
110A - Approves Uniform Rules Relating to the Discovery of Electronically Stored Information Act
(Submitted by NCCUSL) Approved
RESOLVED, That the American Bar Association approves The Uniform Rules Relating to the Discovery of Electronically Stored Information Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2007 as an appropriate Act for those states desiring to adopt he specific substantive law suggested therein.
111A - Supports Reasonable Fee Levels For Immigration And Naturalization Benefits
(Submitted by Commission on Immigration; Co-sponsored by CJS, . . . ) Approved
RESOLVED, That the American Bar Association urges Congress and the executive branch to ensure that:
(a) Fees for immigration and naturalization benefits are set at a level that would not result in the denial of benefits to those who demonstrate an inability to pay;
(b) If fees are set at a level that would result in a denial of benefits, a clearly defined fee waiver policy and procedures are in place to ensure that waivers are available;
(c) Fees are not charged for applications for humanitarian forms of immigration relief and associated benefits; and
(d) Applicants for immigration benefits do not bear the costs of activities not directly related to application processing that benefit the general public, such as national security and anti-fraud efforts.
FURTHER RESOLVED, That the American Bar Association urges Congress and the executive branch to ensure that adequate funds are appropriated to enable U.S. Citizenship and Immigration Services to implement the above recommendations.
111B - Support Federal Regulations to Codify and Improve Detention Standards for Non-Citizens
(Submitted by Immigration Commission; co-sponsored by CJS, . . .) Approved as revisedRESOLVED, That the American Bar Association supports the issuance of federal regulations that codify the Department of Homeland Security Immigration and Customs Enforcement (ICE) National Detention Standards as in effect in October 2007 (the âDetention Standardsâ).
FURTHER RESOLVED, That the American Bar Association urges that:
(a) The Detention Standards and any future standards that incorporate the improvements set forth in this recommendation be applied and enforced at all facilities where noncitizens are detained for immigration purposes, including ICE-operated facilities, contract detention facilities, state, county and local jails, Bureau of Prisons facilities; and other facilities; and
(b) To the extent that non-citizens are subject to detention, individuals and families be detained in the least restrictive setting possible and not be housed with criminal inmates.
FURTHER RESOLVED, That the American Bar Association supports improvement, periodic review, and increased oversight of the Detention Standards to ensure that detained noncitizens and their families are treated humanely and have effective access to counsel and to the legal process.
FURTHER RESOLVED, That the Detention Standards be revised to include the following provisions:
(a) Independent observers, including nongovernmental organizations, shall be permitted to visit and tour all facilities where ICE detainees are held, and meet privately with detainees, to monitor compliance with the Detention Standards. These organizations should be able to issue public reports of the information gathered during their visits.
(b) Legal materials shall be provided in hard copy. If materials are provided on CD- ROM or in another computer format, training must be provided. Qualified personnel must be available to assist detainees with legal research, including those detainees who need assistance because of illiteracy, lack of English proficiency, illness, or other reason.
(c) Family and friends of immigration detainees shall be permitted to have contact visits with detainees.
(d) Reasonable and equitable access to telephones shall be provided at commercially competitive toll charges from which the institution does not, directly or indirectly, derive a profit or recoup overhead for phone equipment costs.
(e) A determination shall be made without unreasonable delay as to whether detainees are âindigentâ and therefore eligible for free stamps, envelopes, and other writing supplies, free telephone calls for legal assistance, calls upon transfer, and calls in case of emergency.
(f) Detainees shall be provided with a continuum of prompt, effective medical and dental care, which shall include both treatment and preventive services that are medically necessary, at no cost to the detainee.
(g) Detainees shall be apprised of complaint processes and grievance procedures, and such procedures shall include provisions for filing a grievance with ICE officers directly, without first going through a facilityâs grievance process. In addition, contact information shall be provided to ensure that detained noncitizens are able to contact government offices, including the DHS Office of the Inspector General, DHS Office for Civil Rights and Civil Liberties, DHS Joint Intake Center, and DHS Office of Internal Audit.
(h) Involuntary transfer of immigration detainees to remote facilities shall be prohibited if such transfer would impede an existing attorney-client relationship, or impede case preparation and defense or financing of such preparation and defense due to remoteness from legal counsel, family members, health care providers, other community support and material witnesses and/or evidence, or if appropriate counsel is not available near the proposed transfer site. Irrespective of whether the individual has already obtained counsel, detained noncitizens shall not be transferred to remote locations where legal assistance generally is not available for immigration matters.
FURTHER RESOLVED, That the American Bar Association urges that the following actions be taken in order to ensure appropriate implementation of the Detention Standards:
(a) A DHS oversight office should review all detention facility inspection reports produced by ICE, and prepare reports of their reviews at least twice each year, which should promptly be released to the public; and
(b) All individuals who supervise, are responsible for, or otherwise come into regular contact with immigration detainees, including ICE officers, contractors, and state, local, federal and territorial corrections and related personnel, should receive in-depth training on the Detention Standards, as well as periodic training updates.
112 - Adopts Model Rule on Conditional Admission to Practice Law
(Submitted by Commission on Lawyer Assistance Programs, CJS . . .) Approved as revised
RESOLVED, That the American Bar Association adopts the Model Rule on Conditional Admission to Practice Law including the commentary, dated February 2008.
â¦
10. Confidentiality. Except as otherwise provided herein, and unless this Court orders otherwise, the fact that an individual is conditionally admitted and the terms of the Conditional Admission Order shall be confidential provided that applicant shall disclose the entry of any Conditional Admission Order to the admissions authority in any jurisdiction where the applicant applies for admission to practice law. In addition to ensuring that the relevant records of the [Admissions, Monitoring, and Disciplinary Authority] are confidential, the [Admissions Authority] shall structure the terms, conditions, and monitoring of conditional admission to ensure that the conditional admission does not pose a significant risk to confidentiality. These provisions for confidentiality shall not prohibit or restrict the ability of the applicant to disclose to third parties that the applicant has been conditionally admitted under this Rule, nor prohibit requiring third-party verification of compliance with terms by admission authorities in jurisdictions to which the conditionally admitted lawyer may subsequently apply.
Commentary
In recommending confidentiality, the Commission was aware of and discussed the inherent tension between the benefits of confidentiality and the publicâs (including potential clients) interest in access to all material information about the applicantâs fitness to practice. It is assumed that, in the absence of a conditional admission rule and under current admission practices, many applicants who would qualify for conditional admission under this rule would be admitted in most jurisdictions unconditionally. Thus, observing confidentiality should result in no less information being provided to the public than is currently the case, but on the other hand confidentiality will promote early disclosure and treatment of impairments.
The Commission recognizes that there are differences in approaches to confidentiality and defers to state courts of highest appellate jurisdiction to make this ultimate decision.
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300 - Urges Appropriate Treatment of âDual Jurisdictionâ Youth in Juvenile Justice Systems
(Submitted by Commisson on Youth at Risk; CJS) Approved as revised
RESOLVED, that the American Bar Association urges the federal, state, territorial, and tribal governments to revise laws, court rules, policies, and practices related to âdual jurisdictionâ youth (abused and neglected youth with juvenile âdependencyâ cases who are charged with acts of delinquency) to:
(a) Use diversion and intervention services for minor or low level acts of misbehavior committed while a youth is in foster care;
(b) Eliminate statutory and legal restrictions inhibiting dual jurisdiction;
(c) Create a legal preference enabling youth to have their dependency proceedings remain open with continued child and family support;
(d) Provide, when feasible, that a single judge hear post-adjudication dispositional matters involving dual jurisdiction cases and that continuity of legal representation for the child in both court proceedings be secured;
(e) Promote training for all juvenile defense counsel on foster care issues;
(f) Ensure that an adult responsible for the youth attend hearings in both proceedings to address issues related to the child and family;
(g) Encourage information-sharing among dependency and delinquency courts and agencies , establish confidentiality protections for all child welfare information shared, and restrict the use of information gathered from foster youth as part of screening, assessment, or treatment in the pending or future delinquency or criminal proceedings;
(h) Promote the prompt post-arrest involvement of providers, caseworkers, or advocates acting on the youthâs behalf; ensure fair treatment of foster youth in juvenile detention, incarceration, or probation decisions; and eliminate practices that result in detention or prolonged incarceration of youth due to foster care status or an absence of suitable placement options;
(i) Provide clear authority for continued social services/child welfare support for children and families when youth cross from dependency to delinquency court/juvenile justice, and eliminate funding barriersthat inhibit multiple agency support of these youth and their families;
(j) Apply protections afforded foster youth under Titles IV-E of the Social Security Act to youth placed through delinquency or status offense proceedings, in foster care or other non-penal settings, under court authority or under the auspices of juvenile justice agencies; and
(k) Fully implement 2002 and 2003 amendments to the Juvenile Justice and Delinquency Prevention Act and the Child Abuse Prevention and Treatment Act to: 1) make youthsâ child welfare records known to the juvenile court for effective treatment planning; 2) provide effective treatment and service continuity when youth transition between child welfare and juvenile justice systems; 3) assure that when youth are placed in settings funded through Title IV-E of the Social Security Act they receive full protections afforded under that law; and 4) collect state data on all youth transferred from one system to another.
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Annual Meeting 2008
11-4 Amends ABA Bylaws re Standing Committee on Gun Violence
(Submitted by individuals) Approved
Amends §31.7 of the Bylaws to read as follows:
§31.7 Designation, Jurisdiction and Special Tenures of Standing Committee. The designation, jurisdiction and special tenures of Standing Committees as follows:
Gun Violence. The Standing Committee on Gun Violence consists of not more than nine members. The Committeeâs responsibilities shall be: (a) To review pending and future proposals relating to prevention and reduction of gun violence in light of existing ABA policies; (b) To identify policy areas, if any, as to which new policy is needed; and (c) To serve as a focal point for activity within the ABA on issues relating to gun violence.
104A Recommends Amendment of FRCP re Pre-Sentence Information
(Submitted by CJS, NACDL) Approved as revised
RESOLVED, That the American Bar Association recommends that Rule 32 of the Federal Rules of Criminal Procedure be amended to require that:
(a) any party submitting documentary information to the probation officer in connection with a pre-sentence investigation shall, unless excused by the Court for good cause shown, provide that documentary information to the opposing party at the same time it is submitted to the probation officer;
(b) a probation officer who receives oral information from a party other than through the interview of the defendant, unless excused by the Court for good cause shown, provide a written summary of the information to the parties.
(c) a probation officer who receives documentary information from a non-party in connection with a pre-sentence investigation, unless excused by the Court for good cause shown, promptly provide that documentary information to the parties; and
( d) a probation officer who receives oral information from a non-party, unless excused by the Court for a good cause shown, provide a written summary of the information to the parties.
104B Urges Oversight of Correctional and Detention Facilities
(Submitted by CJS) Approved
RESOLVED, That the American Bar Association urges federal, state, tribal, local, and territorial governments to develop comprehensive plans to ensure that the public is informed about the operations of all correctional and detention facilities (facilities for the confinement of individuals for alleged or adjudicated crimes or delinquent acts) within their jurisdiction and that those facilities are accountable to the public.
FURTHER RESOLVED, That the American Bar Association urges federal, state, tribal, and territorial governments to establish public entities that are independent of any correctional agency to regularly monitor and report publicly on the conditions in all prisons, jails, and other adult and juvenile correctional and detention facilities operating within their jurisdiction.
FURTHER RESOLVED, That the American Bar Association adopts the âKey Requirements for the Effective Monitoring of Correctional and Detention Facilitiesâ, dated August 2008, and urges that federal, state, tribal, local and territorial monitoring entities meet these Key Requirements as minimum standards.
FURTHER RESOLVED, That the American Bar Association recommends that the federal government:
(1) Provide technical assistance and training to facilitate the establishment of monitoring entities that meet the âKey Requirements for the Effective Monitoring of Correctional and Detention Facilities.â
(2) Require that jurisdictions receiving federal funds for correctional or detention facilities ensure that the facilities are monitored by at least one entity meeting these requirements.
(3) Develop common definitions for the collection and reporting of key performance data by correctional and detention facilities.
KEY REQUIREMENTS FOR THE EFFECTIVE MONITORING
OF CORRECTIONAL AND DETENTION FACILITIES
1. The monitoring entity is independent of the agency operating or utilizing the correctional or detention facility.
2. The monitoring entity is adequately funded and staffed.
3. The head of the monitoring entity is appointed for a fixed term by an elected official, is subject to confirmation by a legislative body, and can be removed only for just cause.
4. Inspection teams have the expertise, training, and requisite number of people to meet the monitoring entityâs purposes.
5. The monitoring entity has the duty to conduct regular inspections of the facility, as well as the authority to examine, and issue reports on, a particular problem at one or more facilities.
6. The monitoring entity is authorized to inspect or examine all aspects of a facilityâs operations and conditions including, but not limited to: staff recruitment, training, supervision, and discipline; inmate deaths; medical and mental-health care; use of force; inmate violence; conditions of confinement; inmate disciplinary processes; inmate grievance processes; substance-abuse treatment; educational, vocational, and other programming; and reentry planning.
7. The monitoring entity uses an array of means to gather and substantiate facts, including observations, interviews, surveys, document and record reviews, video and tape recordings, reports, statistics, and performance-based outcome measures.
8. Facility and other governmental officials are authorized and required to cooperate fully and promptly with the monitoring entity.
9. To the greatest extent possible consistent with the monitoring entityâs purposes, the monitoring entity works collaboratively and constructively with administrators, legislators, and others to improve the facilityâs operations and conditions.
10. The monitoring entity has the authority to conduct both scheduled and unannounced inspections of any part or all of the facility at any time. The entity must adopt procedures to ensure that unannounced inspections are conducted in a reasonable manner.
11. The monitoring entity has the authority to obtain and inspect any and all records, including inmate and personnel records, bearing on the facilityâs operations or conditions.
12. The monitoring entity has the authority to conduct confidential interviews with any person, including line staff and inmates, concerning the facilityâs operations and conditions; to hold public hearings; to subpoena witnesses and documents; and to require that witnesses testify under oath.
13. Procedures are in place to enable facility administrators, line staff, inmates, and others to transmit information confidentially to the monitoring entity about the facilityâs operations and conditions.
14. Adequate safeguards are in place to protect individuals who transmit information to the monitoring entity from retaliation and threats of retaliation.
15. Facility administrators are provided the opportunity to review monitoring reports and provide feedback about them to the monitoring entity before their dissemination to the public, but the release of the reports is not subject to approval from outside the monitoring entity.
16. Monitoring reports apply legal requirements, best correctional practices, and other criteria to objectively and accurately review and assess a facilityâs policies, procedures, programs, and practices; identify systemic problems and the reasons for them; and proffer possible solutions to those problems.
17. Subject to reasonable privacy and security requirements as determined by the monitoring entity, the monitoring entityâs reports are public, accessible through the Internet, and distributed to the media, the jurisdictionâs legislative body, and its top elected official.
18. Facility administrators are required to respond publicly to monitoring reports; to develop and implement in a timely fashion action plans to rectify problems identified in those reports; and to inform the public semi-annually of their progress in implementing these action plans. The jurisdiction vests an administrative entity with the authority to redress noncompliance with these requirements.
19. The monitoring entity continues to assess and report on previously identified problems and the progress made in resolving them until the problems are resolved.
20. The jurisdiction adopts safeguards to ensure that the monitoring entity is meeting its designated purposes, including a requirement that it publish an annual report of its findings and activities that is public, accessible through the Internet, and distributed to the media, the jurisdictionâs legislative body, and its top elected official.
104C Urges Ban on Law Enforcement Racial and Ethnic Profiling
(Submitted by CJS, NACDL, Commission on Immigration, Center for Racial and Ethnic Diversity)
Approved as revised
RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to enact effective legislation, policies, and procedures to ban law enforcementâs use of racial or ethnic characteristics not justified by specific and articulable facts suggesting that an individual may be engaged in criminal behavior, hereinafter termed âracial and ethnic profiling.â Racial and ethnic profiling does not include the use of racial or ethnic characteristics a s part of a physical description of a particular person observed by police or other witnesses to be a participant in a crime or other violation of law.
FURTHER RESOLVED, That the American Bar Association urges that such legislation, policies, and procedures, except when impractical due to the small size or other characteristics of a law enforcement agency, should require:
1. That law enforcement agencies have written policies, training, and supervision necessary to effectively implement the ban and funding necessary for these purposes;
2. Data collection, on all police stops and searches, whether of drivers and their vehicles or pedestrians.
3. Where feasible, independent analysis of data collected, and publication of both the data and the analysis; and
4. Funding for police agencies to be made contingent on compliance with these requirements.
104D Urges Remedies to Curb Cross-Racial Misidentification at Trial
(Submitted by CJS) Approved as revised
RESOLVED, That the American Bar Association urges federal, state, local, and territorial jurisdictions to recognize that in particular cases cross-racial identification may increase the risk of erroneous conviction.
FURTHER RESOLVED , That the American Bar Association urges federal, state, local, and territorial jurisdictions to seek to assure that, in cases which the trial judge finds a sufficient risk of misidentification based on cross-racial factors, expert testimony that satisfies the applicable rules of evidence is admissible, adequate funding is available to enable both the government and indigent defendants to obtain such testimony, and trial judges have available model jury instructions that inform juries of all of the factors that may enhance or detract from the reliability of an eyewitness identification, one of which may be the cross-racial nature of the identification.
108A Urges Expansion of U.S. Interaction with the International Criminal Court
(Submitted by Section of International Law, CJS) Approved
RESOLVED, That the American Bar Association urges the United States Government to expand and broaden United States interaction with the International Criminal Court, including cooperation with the Courtâs investigations and proceedings;
FURTHER RESOLVED, That the Association calls on the United States Government to participate in all future sessions of the International Criminal Courtâs governing body, the Assembly of States Parties, and preparations for the Review Conference to be held in 2010
109 Urges Increased Protection and Assistance for Victims of Gender-Based Violence
(Submitted by Commission on Immigration, Commission on Domestic Violence) Approved
RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to adopt legislation and appropriate funding to strengthen protection and assistance for victims of gender-based violence within the United States and abroad.
FURTHER RESOLVED, That the American Bar Association urges Congress to enact and fund the International Violence Against Women Act of 2007 or similar legislation that:
- Supports funding for legal assistance for global victims of gender-based violence in criminal and civil cases;
- Supports funding to provide training and education globally about gender-based violence and the needs of victims for judges, attorneys, law students and other legal service providers, as well as for law enforcement, government officials, legislators, health care providers, media, community members and other entities or persons who might help further victimsâ access to justice and create awareness about the law;
- Supports efforts to foster a multidisciplinary and community approach to serving victims and ending gender-based violence; and
- Supports efforts to ensure that perpetrators of gender-based violence are held accountable.
110 Replaces ABA Judicial Standards on Juror Use/Management with ABA Jury Principles
(Submitted by Judicial Division, Commission on American Jury Project, etc.) Approved
RESOLVED, That the American Bar Association replaces the Judicial Division
Standards Relating to Juror Use and Management with the ABA Principles for
Juries and Jury Trials.
118 Urges Reforms in Selection of Federal Judges
(Submitted by Standing Committee on Judicial Improvements, etc.) Approved as revised
RESOLVED, That the American Bar Association supports the selection as federal judges of men and women of diverse backgrounds and experiences, whose professional competence, integrity, and judicial temperament, including commitment to equal justice under law, fully qualify them to serve in the federal judiciary;
FURTHER RESOLVED, That the American Bar Association supports the practice of federal judges providing advance notice of their intention to leave active federal judicial service in order to facilitate the timely nomination of individuals to vacant judgeships;
FURTHER RESOLVED, That the American Bar Association encourages the senators in each state jointly and the delegates in each territory to appoint (in cooperation with others not of their party when appropriate) bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community, to evaluate the qualifications of prospective district judges and to recommend possible nominees whom their senators or delegate might suggest for the Presidentâs consideration;
FURTHER RESOLVED, That the American Bar Association endorses the use of bipartisan commissions to consider and recommend prospective nominees for the United States Courts of Appeals;
FURTHER RESOLVED, That the American Bar Association recommends that the President consult with Senate leaders of both parties and the home state senators or delegate in advance of submitting nominations;
FURTHER RESOLVED, That the American Bar Association urges the President and Senate to promptly fill judicial vacancies and act expeditiously, especially with respect to nominees recommended by bipartisan commissions; and
FURTHER RESOLVED, That this resolution supersedes the August 1977 resolution (appended) concerning the judicial nomination and confirmation process.
Midyear Meeting 2009
10A Guantanamo Detainees (CLICK for resolution with report)
RESOLVED, that consistent with the Supreme Courtâs directive in Boumediene v. Bush and President Obamaâs January 22, 2009 Executive Order on âReview and Disposition of Individuals Detained At The Guantanamo Bay Naval Base And Closure of Detention Facilities,â the American Bar Association urges the U.S. Government to ensure that:
(a) All individuals who have been or are expected to be charged with violations of criminal law should be prosecuted in Article III federal courts, unless the Attorney General certifies, in cases involving recognized war crimes, that prosecution cannot take place before such courts and can be held in other regularly constituted courts in a manner that comports with fundamental notions of due process, traditional principles of the laws of war, the Geneva Conventions and the Uniform Code of Military Justice;
(b) All individuals currently detained at Guantanamo who, upon review, are determined to have been improperly classified as or no longer considered to be âenemy combatantsâ should be promptly released or resettled; and
(c) All remaining individuals currently detained as enemy combatants at Guantanamo are granted a prompt habeas corpus hearing with full due process rights and provided access to counsel and the right to review and confront the evidence against them, including potential exculpatory evidence within the governmentâs possession, whether or not used, or intended to be used at trial, subject to appropriate conditions as may be set by the court to accommodate the needs of the detainee and the requirements of national security; and
(d) No individual should be detained as an âenemy combatantâ except pursuant to an act of Congress defining this term.
101A: Juvenile Sex Offender Registration (CLICK for resolution with report)
RESOLVED, That the American Bar Association urges Congress and the state legislatures to re-examine and revise laws, policies, and practices that require youth to register as sex offenders or be subject to community notification provisions otherwise imposed upon adult sex offenders, based upon a juvenile court adjudication.
FURTHER RESOLVED, That the American Bar Association urges Congress to amend Public Law 109-248 regarding sexual crimes committed by juveniles, to require that juvenile court judges consider factors relevant to the specific offense and the individual juvenile offender in determining whether they should be placed on sex offender registries, subjected to sex offender registration requirements and community notification of their offense(s), or otherwise face additional restrictions generally placed on adult sexual offenders.
FURTHER RESOLVED, That the American Bar Association urges states to:
a) Apply the provisions of Public Law 109-248 prospectively only to adjudicated juveniles, so that they are not subjected to collateral punishment or other sanctions that would go beyond that originally handed down by the juvenile court after a juvenile delinquency adjudication; and
b) Provide a remedy through which adjudicated persons may later apply for relief from sex offender registration and other related requirements after an appropriate period of supervision, treatment, and lawful community adjustment.
FURTHER RESOLVED, That the American Bar Association urges Congress and the state legislatures to provide increased funding for assessment and effective treatment interventions for juveniles adjudicated for sexual offenses, as well as for specialized juvenile probation service monitoring of these adolescents.
FURTHER RESOLVED, That the American Bar Association urges Congress and the state legislatures to provide increased funding to better meet both the short and long-term treatment needs of child victims of sex crimes.
101B: Mediation in Criminal Matters (CLICK for resolution with report)
RESOLVED, That the American Bar Association urges federal, state, territorial, and local governments to initiate, continue and expand the use of mediation as a means to resolve criminal matters, specifically at a time prior to actual case filing and with adequate constitutional protections except in cases in which any of the participants are deemed to be susceptible to coercion, manipulation or re-traumatization as in a case of violent crime or domestic abuse.
FURTHER RESOLVED, That the American Bar Association encourages federal, state, territorial, and local governments to initiate, continue and expand the use of mediation, early resolution courts, prefiling diversion, expeditors, restorative justice programs and other process innovations where appropriate, to assist with plea negotiations and/or the expedition and resolution of both pending misdemeanor and felony cases.
FURTHER RESOLVED, That he American Bar Association encourages federal, state, territorial, and local governments to use only those individuals who have received appropriate mediation training.
FURTHER RESOLVED, That the American Bar Association encourages federal, state, territorial, and local governments to adhere to proper mediation protocols and recognize the rights, needs and sensitivities of the mediation participants, including the assurances that statements will not be used against the accused directly or derivatively and the accused will be fully apprised of the collateral consequences should the mediation fail.
FURTHER RESOLVED, That the American Bar Association encourages federal, state, territorial, and local governments to support continuing research regarding mediation as a method to assist in the processing and resolution of appropriate criminal and quasi criminal matters, and to disseminate those research results.
101C: Legal Assistance for Immigration Detainees (CLICK for resolution with report)
RESOLVED, That the American Bar Association supports legislation and/or administrative standards to ensure due process and access to appropriate legal assistance for persons arrested or detained in connection with immigration enforcement actions.
FURTHER RESOLVED, That such standards should provide that enforcement actions and subsequent criminal and immigration proceedings are carried out in a manner that ensures that:
a. Individuals are provided notice of the right to consult with an attorney and afforded access to competent legal counsel who are adequately versed in criminal and immigration law, and/or access to co-counsel who are qualified in those fields, while subject to any immigration-related enforcement activity, including interviews, processing appointments, hearings, and any procedure that may result in criminal prosecution or an individualâs detention or removal from the United States.
b. Individuals receive a legal orientation, including notice of their right to remain silent, right to confront witnesses, right to a trial, and a complete and accurate translation of the investigation and proceedings in a language they comprehend that enables them to understand their rights.
c. Individuals have adequate access to telephones in order to consult with counsel and members of their family, and indigent individuals are permitted to make an adequate number of telephone calls to counsel or family members free of charge.
d. Attorneys are given an adequate opportunity to consult, in private, with each client and to investigate and evaluate the facts and circumstances (including the potential impact of a criminal conviction on the individual's immigration status, the strength of the governmentâs case and any defenses or claims for relief the client may be in a position to assert).
e. Individuals have a full and fair opportunity to consider any plea offer and to confer with counsel regarding the offer.
f. Individuals have a full and fair opportunity to assert any defenses or claims for relief.
g. Individuals are permitted to waive their rights only if the waiver is knowing and voluntary.
- h. Individuals who have a reasonable basis for seeking relief from removal are provided with a full and fair hearing before an immigration court to determine their eligibility for such relief.
i. U.S. citizens are not mistakenly arrested or detained.
FURTHER RESOLVED, That emergency assistance should be provided to minor children whose parents are arrested or detained;
FURTHER RESOLVED, That the American Bar Association encourages bar associations to raise awareness of the rights available to individuals taken into custody during workplace immigration enforcement actions, assist in the provision of pro bono legal services to individuals who cannot afford to hire an attorney, and facilitate effective representation through training programs for court appointed and pro bono counsel.
101 D: Counsel for Child Victims (CLICK for resolution with accompanying report)
RESOLVED, That the American Bar Association urges federal, state, tribal, local, and territorial governments to ensure that child victims of criminal conduct have prompt access to legal advice and counsel and to specialized services and protections such as those provided by child advocacy centers approved and accredited by the National Children's Alliance.
FURTHER RESOLVED, That the American Bar Association urges federal, state, tribal, local, and territorial governments including courts, and state and local bar associations:
- 1. to support legislation or the modification of rules of court to provide that child victims of criminal conduct have independent attorneys who can assist them in accessing applicable victimsâ rights (such as those provided by 18 U.S.C. 3771 in the federal system) and age-appropriate accommodations (such as those provided by 18 U.S.C. 3509 in the federal system) established by law in the jurisdiction if the court makes a finding that the childâs interests are not otherwise adequately protected.
- 2. to initiate pilot programs or demonstration projects in which rights and protections for the child victim of criminal conduct are protected and enforced.
FURTHER RESOLVED, That the American Bar Association, state and local bar associations, law schools, victim rights organizations, child rights organizations, and courts are urged to collaborate to develop appointment procedures for courts to appoint attorneys for child victims of criminal conduct and to adopt standards of practice and training requirements for those attorneys appointed for child victims including those regarding the attorneysâ roles and responsibilities.
301: Appeal from Order Rejecting Attorney-Client Privilege (CLICK for resolution with report)
RESOLVED, that the American Bar Association supports the right of participants in federal proceedings to take an immediate appeal from an order that rejects a claim of attorney-client privilege and on that basis requires the production of information or materials for which the privilege has been claimed;
FURTHER RESOLVED, that the American Bar Association believes that the right to pursue such an immediate appeal will help to preserve the attorney-client privilege.
FURTHER RESOLVED, that the American Bar Association concludes that an order requiring disclosure of documents or information claimed to be protected by the attorney-client privilege should be immediately appealable as a collateral final decision under the doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
Board of Governors, June 2009
Identity Theft
RESOLVED that the American Bar Association urges the Federal Trade Commission and the U.S. Congress to clarify that the Commissionâs Red Flags Rule imposing requirements on creditors relating to identity theft is not applicable to lawyers while they areproviding legal services to clients .
RESOLVED that the American Bar Association urges the Federal Trade Commission and the U.S. Congress to clarify that the Commissionâs Red Flags Rule imposing requirements on creditors relating to identity theft is not applicable to lawyers while they areproviding legal services to clients.
Annual Meeting 2009
104: Criminal Law/DUI Trial Advocacy (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association reaccredit the following designated specialty certification program for lawyers:
. . .
Family Law Trial Advocacy, Civil Law Trial Advocacy and Criminal Law Trial Advocacy program of the National Board of Legal Specialty Certification of Wrentham, Massachusetts.
. . .
DUI Defense Law program of the National College for DUI Defense, Inc. of Montgomery, Alabama.
108: Conditional Admission to Practice Law (CLICK for resolution with report)
RESOLVED, That the American Bar Association amends the Model Rule on Conditional Admission to Practice law, including the commentary, to read as follows:
1. Conditional Admission. An applicant who currently satisfies eligibility requirements for admission to practice law, including fitness requirements, and who possesses the requisite good moral character required for admission, may be conditionally admitted to the practice of law if the applicant demonstrates recent successful rehabilitation from chemical dependency or successful treatment for mental or other illness, or from any other condition this Court deems appropriate, that has caused conduct that would otherwise have rendered the applicant currently unfit to practice law. The [Admissions Authority] shall recommend appropriate conditions that the applicant to the bar must comply with during the period of conditional admission.
[Note: Commentary changes to this and other provisions not included here]
109: Conflicts of Interest (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association amend Model Rule of Professional Conduct 1.10(a) to read as follows:
Rule 1.10 Imputation of Conflicts of Interest: General Rule
* * *
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
(1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or
(2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyerâs association with a prior firm, and . . .
* * *
110: United Nations âResponsibility to Protectâ and Preventing Genocide (CLICK for resolution with report)
RESOLVED, That the American Bar Association endorses paragraphs 138 and 139 of the world Summit Outcome Document of the 60 th session of the UN General Assembly (September 2005) concerning the Responsibility to Protect doctrine;
FURTHER RESOLVED, That the American Bar Association endorses the recommendations set forth in the report Preventing Genocide: A Blueprint for U.S. Policymakers (December 2008), by the joint Genocide Prevention Task Force of the United States Holocaust Memorial Museum, the American Academy of Diplomacy, and the United States Institute of Peace.
111B: National Study of Criminal Justice (CLICK for resolution with report)
RESOLVED, That the American Bar Association supports the enactment of legislation such as S. 714 (111 th Congress) which would provide for a national study of the state of criminal justice in the United States to consider ways to reduce crime, lower incarceration rates, save taxpayer money, enhance the fairness and accuracy of criminal justice outcomes, and increase public confidence in the administration of the criminal justice system; and
FURTHER RESOLVED, That the American Bar Association urges, as part of such a national study, that consideration be given to all the serious criminal justice issues facing federal, state, local and territorial jurisdictions, including the following :
- whether fair and reasonable guidelines exist to distinguish between those offenders who should be incarcerated and those for whom alternative sentences would be more effective;
- whether alternatives to incarceration, such as community confinement, home detention, community treatment programs that address mental health issues and problems relating to drug addiction and chemical dependence, and other treatment options, provide better alternatives to incarceration for some offenders, and if so, how to design the most effective community confinement and treatment options;
- whether diversion from criminal prosecution can be more effectively employed to give offenders in appropriate cases a second chance and to prevent them from developing criminal records;
- whether re-entry programs can be initiated or enhanced to improve the likelihood that offenders will return to the community as productive, law-abiding citizens and avoid recidivism;
- whether state and local courts, prosecutors, and defense lawyers in some jurisdictions have developed innovative and successful (in terms of both costs and results) treatment, diversion and re-entry programs that could become models for use in other jurisdictions;
- whether the collateral consequences of convictions can be reduced in reasonable and constructive ways without undue risk to the community, in order to help former offenders with issues such as finding jobs and housing, obtaining educational opportunities, and recovering voting rights;
- whether effective processes and procedures exist or can be developed to reliably identify practices by law enforcement agencies and other elements of the criminal justice system that unnecessarily contribute to racial disparities among individuals sentenced to jail and prison;
- whether long prison sentences should be reexamined once the offender has served a significant portion of the sentence, to determine whether changed circumstances warrant a reconsideration of the length of the sentence, even though it was appropriate when imposed;
- whether additional resources should be provided to train criminal justice officials in the exercise of discretion; and
- whether the scope of federal criminal law and the respective roles of state and federal law enforcement should be re-examined.
113: Categorical Approach to Immigration Consequences of Convictions (CLICK for resolution with report)
RESOLVED, That the American Bar Association supports legislation, policies, and practices that preserve the categorical approach used to determine the immigration consequences of past criminal convictions, under which the adjudicator relies on the criminal statute and the record of conviction rather than conducting a new factual inquiry into the basis for the conviction.
FURTHER RESOLVED, That the American Bar Association urges U.S. immigration authorities to interpret immigration laws in accordance with the categorical approach.
119: Excessive Public Defender Workloads (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association adopts the black letter (and introduction and commentary) the Eight Guidelines of Public Defense Related to Excessive Workloads, dated August 2009.
[ Note: The approved black letter Guidelines without introduction or commentary appear below.]
1. The Public Defense Provider avoids excessive lawyer workloads and the adverse impact that such workloads have on providing quality legal representation to all clients. In determining whether these objectives are being achieved, the Provider considers whether the performance obligations of lawyers who represent indigent clients are being fulfilled, such as:
- whether sufficient time is devoted to interviewing and counseling clients;
- whether prompt interviews are conducted of detained clients and of those who are released from custody;
- whether pretrial release of incarcerated clients is sought;
- whether representation is continuously provided by the same lawyer from initial court appearance through trial, sentencing, or dismissal;
- whether necessary investigations are conducted;
- whether formal and informal discovery from the prosecution is pursued;
- whether sufficient legal research is undertaken;
- whether sufficient preparations are made for pretrial hearings and trials; and
- whether sufficient preparations are made for hearings at which clients are sentenced .
2. The Public Defense Provider has a supervision program that continuously monitors the workloads of its lawyers to assure that all essential tasks on behalf of clients, such as those specified in Guideline 1, are performed.
3. The Public Defense Provider trains its lawyers in the professional and ethical responsibilities of representing clients, including the duty of lawyers to inform appropriate persons within the Public Defense Provider program when they believe their workload is unreasonable.
4. Persons in Public Defense Provider programs who have management responsibilities determine, either on their own initiative or in response to workload concerns expressed by their lawyers, whether excessive lawyer workloads are present.
5.Public Defense Providers consider taking prompt actions such as the following to avoid workloads that either are or are about to become excessive:
- Providing additional resources to assist the affected lawyers ;
- Curtailing new case assignments to the affected lawyers;
- Reassigning cases to different lawyers within the defense program, with court approval, if necessary;
- Arranging for some cases to be assigned to private lawyers in return for reasonable compensation for their services;
- Urging prosecutors not to initiate criminal prosecutions when civil remedies are adequate to address conduct and public safety does not require prosecution;
- Seeking emergency resources to deal with excessive workloads or exemptions from funding reductions;
- Negotiating formal and informal arrangements with courts or other appointing authorities respecting case assignments; and
- Notifying courts or other appointing authorities that the Provider is unavailable to accept additional appointments.
6. Public Defense Providers or lawyers file motions asking a court to stop the assignment of new cases and to withdraw from current cases, as may be appropriate, when workloads are excessive and other adequate alternatives are unavailable.
7. When motions to stop the assignment of new cases and to withdraw from cases are filed, Public Defense Providers and lawyers resist judicial directions regarding the management of Public Defense Programs that improperly interfere with their professional and ethical duties in representing their clients.
8. Public Defense Providers or lawyers appeal a courtâs refusal to stop the assignment of new cases or a courtâs rejection of a motion to withdraw from cases of current clients.
Midyear Meeting 2010
102A: Collateral consequences for juveniles (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to increase the opportunities of youth involved with the juvenile or criminal justice systems and to prevent the continuing discrimination against those who have been involved with these systems in the past by limiting the collateral consequences of juvenile arrests, adjudications, and convictions.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to adopt and enforce laws and policies which:
- Prohibit employers, colleges, universities, vocational and technical schools, financial aid offices, licensing authorities and similar agencies from inquiring about or considering an arrest of a juvenile that did not lead to a finding of guilt, an adjudication or a conviction, or basing the denial of educational or vocational opportunities to applicants on such arrest;
- Prohibit employers and educational institutions from considering any records pertaining to an arrest, adjudication or conviction of an applicant that occurred while the applicant was a juvenile if such records have been sealed or expunged by the court.
- Prohibit colleges, universities, financial aid offices, other educational institutions and employers and employment licensing authorities: (1) from considering juvenile adjudications or criminal convictions unless engaging in the conduct underlying the adjudication or conviction would provide a substantial basis for denial of a benefit or opportunity even if the person had not been adjudicated or convicted, and (2) if the underlying conduct does provide such a basis: (a) from considering a juvenile adjudication, if three years have passed following the applicant's discharge from custody or supervision without being adjudicated or convicted of a subsequent offense; and (b) from considering a criminal conviction, if five years have passed following the applicant's release from custody or supervision without being convicted of a subsequent offense.
FURTHER RESOLVED, that the American Bar Association urges federal, state, territorial and local governments to adopt and enforce policies encouraging employers, colleges, universities, financial aid offices, licensing authorities and other agencies to give consideration to a juvenileâs successful completion of a community re-entry program or the terms of their probation.
FURTHER RESOLVED, that the American Bar Association urges federal, state territorial and local governments to adopt and enforce policies encouraging employers, colleges, universities, financial aid offices, licensing authorities and other agencies to include on applications clear definitions of legal terms such as arrest, adjudication, and conviction.
102B: Juvenile Miranda rights (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges federal, state, territorial and local legislative bodies and governmental agencies to support the development of simplified Miranda warning language for use with juvenile arrestees.
102C: Civil remedies for misdemeanors (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges local, state, territorial and federal governments to undertake a comprehensive review of the misdemeanor provisions of their criminal laws, and, where appropriate, to allow the imposition of civil fines or nonmonetary civil remedies instead of criminal penalties, including fines and incarceration.
102D: Judicial pretrial conference re discovery (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges federal, state, local and territorial courts to adopt a procedure whereby a criminal trial court shall conduct at a reasonable time prior to a criminal trial involving felony or serious misdemeanor charges a conference with the parties to ensure that they are fully aware of their respective disclosure obligations under applicable discovery rules, statutes, ethical standards and the federal and state constitutions and to offer the courtâs assistance in resolving disputes over disclosure obligations.
102E: Prisoner/child relationship (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges federal, state, territorial, and local governments to ensure that judicial, administrative, legislative, and executive authorities expand, as appropriate in light of security and safety concerns, initiatives that facilitate contact and communication between parents in correctional custody and their children in the free community. Such initiatives should:
(a) to the extent practicable, assign prisoners to a facility located within a reasonable distance from the prisonerâs family or usual residence;
(b) encourage and support no cost or low cost public transportation between urban centers and prisons for families of prisoners;
(c) revise visitation rules, including those related to hours and attire to facilitate extended contact visits between parents and their minor children, and assure that information is made available to parents regarding opportunities to visit with their children;
(d) modify visitation areas to accommodate visits by young children;
(e) provide reasonable opportunities for inmates to call and write their minor children at no cost or at the lowest possible rates;
(f) seek to reduce barriers that limit opportunities for children in foster care to visit their incarcerated parent, and make available services to help address the trauma that these children face resulting from parental incarceration;
(g) adopt or expand programs on parenting and parenting skills available to incarcerated prisoners with minor children, and provide their family members with services designed to strengthen familial relationships and child safety, permanency, and well being outcomes;
(h) provide the opportunity for incarcerated parents to participate meaningfully in dependency-related court proceedings involving their children and ensure competent and consistent legal counsel to aid them in these cases;
FURTHER RESOLVED, That the American Bar Association urges states, territories, and the federal government to adopt policies and procedures, to the extent consistent with security, safety, and privacy concerns, that require child welfare agencies to track the incarceration status of the parents of children in foster care, and that facilitate communication between the child welfare system and the corrections system regarding the incarceration status of the parents, the location of the parentsâ correctional facilities, and subsequent transfers of the parents to other correctional facilities.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to clarify that incarceration alone should not be grounds for judicial termination of parental rights, nor does incarceration negate child welfare agency requirements to provide reasonable efforts that may aid in facilitating safe, successful, and appropriate parent-child reunification; and
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to explore the use of innovative means of providing opportunities for parent/child contact and communication, including but not limited to intergovernmental contracts, and alternatives to incarceration such as privately operated residential facilities.
102F: Defense advice re parental rights (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges bars, bar associations, and law schools to consider and expand, as appropriate, initiatives that assist criminal defendants andprisoners in avoiding undue consequences of arrest and conviction on their custodial and parental rights. Such initiatives should include:
(a) training criminal defense counsel to: 1) ascertain whether their clients have minor children and if so, to ascertain the location of the children; and, 2) to advise clients with minor children as to the consequences of arrest and conviction on their custodial and parental rights and on how to obtain further assistance in avoiding those consequences;
(b) developing models for training lawyers about the collateral effects of arrest and conviction on their parenting rights that can be distributed to bar associations; and
(c) establishing programs to provide criminal defendants and prisoners with no cost or low cost legal assistance on family law issues, including the avoidance of foster care through kinship care and guardianship arrangements.
FURTHER RESOLVED, That the American Bar Association urges Congress to eliminate restrictions that prohibit recipients of Legal Services Corporation funds from providing legal assistance to prisoners on family law issues.
102G: Partisan investigations of prosecutors (CLICK for complete resolution with report)
RESOLVED, that the American Bar Association urges the President and the Attorney General to assure that lawyers in the Department of Justice do not make decisions concerning investigations or proceedings based upon partisan political interests and do not perceive that they will be rewarded for, or punished for not, making a decision based upon partisan political interests; and
FURTHER RESOLVED, that the American Bar Association urges the leaders of state, local and territorial legal offices to assure that lawyers in their offices do not make decisions concerning investigations or proceedings based upon partisan political interests and do not perceive that they will be rewarded for, or punished for not, making a decision based upon partisan political interests.
102I: Treatment of Prisoner Standards (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association adopts the black letter of the ABA Criminal Justice Standards on the Treatment of Prisoners dated February 2010 to supplant the ABA Criminal Justice Standards on the Legal Status of Prisoners.
FURTHER RESOLVED, That Standards 7-10.2 and Standards 7-10.5 through 7-10.9 of the ABA Criminal Justice Mental Health Standards are supplanted by Standard 23-6.15 of the ABA Criminal Justice Standards on the Treatment of Prisoners.
102J: Student Loan Repayment (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges Congress to ensure that funding for the John R. Justice Prosecutors and Defenders Incentive Act of 2008 (Section 951 of PL 110-315) is expanded beyond its original authorization of $25 million to cover the actual national need.
FURTHER RESOLVED, That the American Bar Association urges Congress to lift the proposed expiration of the John R. Justice Prosecutors and Defenders Act of 2008.
104: Vienna Convention (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges the United States and upon state and territorial governments to work to ensure that the fundamental protections of Article 36 to the Vienna Convention on Consular Relations (âArticle 36â) are extended fully and without obstacle to foreign nationals within United States borders; and
FURTHER RESOLVED, That the American Bar Association urges the United States to work to ensure that the fundamental protections of Article 36 are extended fully and without obstacle to United States citizens in foreign countries; and
FURTHER RESOLVED That the American Bar Association urges the President and Congress to renew the United Statesâ commitment to the implementation of the Vienna Convention and to the enforcement of its obligations under the United Nations Charter and the Optional Protocol to the Vienna Convention by:
(1) Seeking means to fully implement the decision of the International Court of Justice in Avena and Other Mexican Nationals through legislation and other means, where possible;
(2) Recognizing that disputes arising out of the interpretation of the Vienna Convention and related questions of international law should be decided by the International Court of Justice; and
(3) According the decisions of the International Court of Justice with regard to those disputes binding force within the United States, including honoring and enforcing any International Court of Justice judgments to which the United States is a party; and
FURTHER RESOLVED That the American Bar Association urges the President and Congress, as well as state and territorial executives, officials, and legislatures, to advance the implementation of and compliance with Article 36 of the Vienna Convention in the United States through the following measures:
(1) Drafting and adopting appropriate legislation that would codify the protections of Article 36 of the Vienna Convention into United States and state law, including but not limited to the following:
(a) Enacting legislation requiring that a person who is arrested or detained shall be advised without delay that if the arrestee or detainee is a foreign national, the foreign national has a right to communicate with an official from the consulate of the foreign nationalâs country, and that if the arrestee or detainee chooses to exercise this right the advising officer notify the pertinent official in the officerâs agency or department of that fact; and
(b) Enacting legislation that renders procedural default rules inapplicable to an assertion in criminal cases that the defendantâs right under Article 36 has been violated; and
(2) Developing federal, state and territorial policies and procedures that enhance United States compliance with Article 36 of the Vienna Convention, such as the following measures:
(a) Advising an arrestee or detainee as part of the booking process that foreign nationals have an Article 36 right to communicate with an official from the consulate of the foreign nationalâs consulate;
(b) Adopting, as appropriate, policies and procedures that reflect and abide by the principles set forth in model guidelines or standards such as those promulgated by the United States Department of State or by Commission on Accreditation of Law Enforcement Agencies, regarding compliance with the Vienna Convention consular notification requirements;
(c) Taking steps to ensure that knowledge of these polices and procedures and of the right to consular notification is disseminated to federal, state, and local law enforcement personnel;
(d) Taking steps to ensure that a magistrate or judge informs a defendant at the first appearance that foreign nationals have an Article 36 right to communicate with an official from the consulate of the foreign nationalâs consulate;
(e) Providing training for prosecutors, defense counsel, judges, and law enforcement personnel as to the United Statesâ obligations under Article 36;
(f) Taking steps to ensure that for countries on the mandatory notification list, that mandatory notification does occur in all cases; and
FURTHER RESOLVED, That the American Bar Association urges prosecutors and criminal defense attorneys to become knowledgeable about the Vienna Conventionâs consular notification requirements and work to ensure effective exercise of those rights by foreign national defendants, including through the following measures:
(1) For prosecutors, assuming a responsibility to verify that a foreign national criminal defendant has been informed of the right to consular notification, and verifying that any request has been honored or that mandatory notification requirements have been met;
(2) For criminal defense attorneys in all cases, complying fully with ABA Guideline 10.6 "Additional Obligations of Counsel Representing a Foreign National" contained in the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003); and
FURTHER RESOLVED, That the American Bar Association urges state and territorial bar associations, in matters involving foreign national defendants, to establish local links with consulates in the United States to assist the consulates in finding counsel for foreign national defendants, to provide other appropriate assistance to the consulates, to seek periodic assessments from consulates as to compliance with Article 36 by the United States and state and local governments, and to work with the consulates to propose and implement any necessary reforms and improvement.
105A: Veterans Act (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association supports the development of comprehensive, systemic approaches to address the special needs of veterans within civil and criminal court contexts, including but not limited to proceedings involving veterans service-related injuries, disorders, mental health and substance abuse needs, through programs that connect veterans to appropriate housing, treatment and services through partnerships with the local Veterans Affairs Medical Centers, community-based services and housing providers.
FURTHER RESOLVED, That the American Bar Association urges state, local, and territorial courts to facilitate the development of Veterans Treatment Courts, including but not limited to, specialized court calendars or the expansion of available resources within existing civil and criminal court models focused on treatment-oriented proceedings.
FURTHER RESOLVED, That the American Bar Association adopts the following principles for Veterans Treatment Courts to the extent appropriate and feasible for each jurisdiction:
1) Participation is voluntary and the constitutional rights of participants are retained.
2) Veterans Treatment Courts or the resources devoted to veterans within existing civil and criminal court models will utilize the participation of a caseworker and legal representative with coordination from federal Veterans Affairs employees, veteran service agencies, community-based service providers, and local agencies to assess the needs of and provide veterans with appropriate housing, treatment, services, job training, and benefits.
3) Veterans Treatment Courts or the resources devoted to veterans within existing civil and criminal court models include mentoring sessions with other veterans.
4) In the criminal court context, participants in the program have all qualifying charges reduced or dismissed, or traditional sanctions waived, including where appropriate and feasible, more serious charges, commensurate with completion of appropriate treatment and services. Where charges are dismissed, public access to the record is limited, where appropriate and feasible as provided by state or local law, including through expungement.
5) The Veterans Treatment Courts shall address those criminal matters that involve serious violent felonies only at the discretion of local courts.
6) The success of Veterans Treatment Courts or additional resources devoted to veterans within existing civil and criminal court models is measured through the following outcomes:
a) prevention and reduction of homelessness among veterans;
b) reduction of recidivism;
c) recovery achieved through compliance with the individual treatment plan of the veteran;
d) improved communication and reunification with family members, when appropriate;
e) successful elimination of legal barriers to self-sufficiency;
f) reentry to the workforce, enhanced job opportunities, and reintegration with the community;
g) economic savings to the courts, criminal justice and public health systems, and the community;
h) connection to VA benefits, long term supportive housing, and other benefits for participants whose service related disabilities are so severe as to prevent their return to the workforce.
105B: Homeless and runaway youth (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges Congress to increase funding for programs under the Runaway and Homeless Youth Act and other laws in order to more effectively intervene and end homelessness for youth, ages 12 through 24.
FURTHER RESOLVED, That the American Bar Association urges state, local, and territorial governments to revise their laws, policies and practices in light of the emergence of new models and best practices in the law to help runaway and homeless youth and their families, including:
1) Assisting, as victims of crime, instead of arresting, children who have engaged in prostitution or other forms of commercial sexual exploitation; and
2) Assisting, instead of arresting and using the courts to unnecessarily detain, children who have been forced out of their homes or who have run away from homes that are abusive or neglectful; and
3) Ensuring that safe and loving families can be supported and that reunification can occur expeditiously, where appropriate, or, when reunification is not possible, assisting youth to locate kinship care options or clarify guardianship status and find sufficient access to services provided by public child welfare agencies or other community-based agencies offering residential care.
FURTHER RESOLVED, That the American Bar Association urges Congress, state, local, and territorial governments to improve statutory definitions, as well as data collection and reporting systems, in order to:
1) Assist in better defining unaccompanied, homeless youth as within those categories of individuals eligible for family preservation services, independent living support, court orders for protection from physical violence and sexual assault, and other child welfare services; and
2) Accurately count the number of runaway and homeless youth, as well as youth who are sexually trafficked or otherwise victimized by commercial sexual activity.
FURTHER RESOLVED, That the American Bar Association, urges the Federal Government to:
1) Assist local communities in establishing plans to end youth homelessness, which include specific recommendations for the role of federal and state governments in abating youth homelessness, including implementation of model laws developed to address issues related to youth homelessness;
2) Increase coordination among the federal departments of Housing and Urban Development (HUD), Health and Human Services (HHS), and Justice to address the
crisis of youth homelessness by identifying promising practices in housing assistance to homeless youth;
3) Focus on youth homelessness among those formerly in the child welfare and juvenile justice systems, including offering at least 50,000 youth housing opportunities on an annual basis to these and other homeless youth; and
4) Enhance the integration and collective analysis of data compiled by federal, state, local, and territorial systems.
111B: Uniform Collateral Consequences of Conviction Act (NCCUSL) (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association approves the Uniform Collateral Consequences of Conviction Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2009, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.
114A: Immigration and Nationality Act (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges the Department of Homeland Security (DHS) to implement the following policies and procedures within the immigration removal adjudication system:
(a) Increase use of prosecutorial discretion by both DHS officers and attorneys to reduce the number of Notices to Appear (âNTAâ) served on noncitizens who are prima facie eligible for relief from removal, and to reduce the number of issues litigated;
(b) Give DHS attorneys greater control over the initiation of removal proceedings, and in DHS local offices with sufficient attorney resources, establish a pilot program requiring approval of a DHS lawyer prior to issuance of all discretionary Notices to Appear by DHS officers;
(c) To the extent possible, assign one DHS trial attorney to each removal proceeding;
(d) Cease issuing Notices to Appear to noncitizens who are prima facie eligible to adjust to lawful permanent resident status;
(e) Upgrade DHS's data systems to permit better tracking of detainees within the detention system, and improve protocols for transfers of detainees between detention facilities to ensure notification of family members and counsel; and
(f) Create a position within DHS to oversee and coordinate all aspects of DHS immigration policies and procedures, including asylum matters.
FURTHER RESOLVED, That the American Bar Association urges Congress to amend the Immigration and Nationality Act (âINAâ) regarding the removal of noncitizens convicted of certain crimes that would:
(a) Amend the definition of âaggravated felonyâ to require that any such conviction must be of a felony and that a term of imprisonment of more than one year must be imposed (excluding any suspended sentence);
(b) Eliminate the retroactive application of the aggravated felony provisions;
(c) Restore an immigration judgeâs authority to consider a discretionary application for cancellation of removal for certain lawful permanent residents convicted of an aggravated felony, based on humanitarian and other grounds. Extend the same eligibility based on humanitarian grounds to deserving lawful permanent residents barred from cancellation by the offense âclock-stopâ provision; and
(d) Amend the deportation ground that requires removal based upon conviction of a single crime involving moral turpitude to provide that the conviction must be of a crime for which a sentence of more than one year was imposed.
115: Violence Against Women Act (CLICK for complete resolution with report)
RESOLVED, That the American Bar Association urges Congress to re-authorize and fully fund the Violence Against Women Act and similar legislation that:
1. Enhances judicial, legal and law enforcement tools to combat domestic violence, dating violence, sexual assault, and stalking;
2. Improves services for victims of domestic violence, dating violence, sexual assault, and stalking;
3. Strengthens the healthcare systemâs response to domestic violence, dating violence, sexual assault, and stalking;
4. Provides housing opportunities and economic security for victims of domestic violence, dating violence, sexual assault, and stalking;
5. Provides services, protection, and justice for underserved and vulnerable victims of violence, including children and youth who are victims or are witnesses to family violence, and victims who are disabled, elderly, immigrant, trafficked, LGBT and/or Indian;
6. Strives to prevent domestic violence, dating violence, sexual assault, and stalking.
Annual Meeting 2010
100A: Investigations of Department of Justice Lawyers (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges the United States Department of Justice (the âDepartmentâ) to:
( a) continue in its commitment to investigate allegations of professional misconduct on the part of the Departmentâs lawyers;
(b) release as much information regarding completed individual investigations as possible, consistent with privacy interests and law enforcement confidentiality concerns;
(c) publish annual reports of completed investigations that inform the public of conduct by government lawyers found to be proper or to constitute a violation of the rules of professional conduct; and
(d) report any violation of the rules of professional conduct to appropriate disciplinary authorities of the jurisdictions where the involved lawyer is admitted to practice.
100B: Prosecutorial misconduct and error (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges trial and appellate courts, in criminal cases, when reviewing the conduct of prosecutors to differentiate between âerrorâ and âprosecutorial misconduct.â
100C: Funding to train defenders about immigration consequences (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges federal, state, territorial, tribal and local governments to provide funding to state and federal public defender offices and legal aid programs specifically for the provision of advice about the immigration consequences of criminal proceedings to indigent non-U.S. citizen defendants , and about any available relief from such consequences.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local bar associations to provide training to prosecutors, judges, criminal defense lawyers, and legal aid lawyers in the immigration consequences of criminal proceedings and available relief,the duty of defense attorneys to advise defendants about such consequences, as set forth by the Supreme Court of the United States in Padilla v. Kentucky.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local bar associations to provide pro bono or reduced fee support services to public defender and legal aid organizations in counseling indigent defendants as to the immigration consequences of criminal convictions.
100D: Funding and resources for forensic sciences (CLICK for resolution with background report)
R ESOLVED, That the American Bar Association urges federal, state, local , tribal and territorial government to provide sufficient funding and resources necessary to accomplish the following goals:
- facilitate basic and applied scientific research to improve and/or further develop forensic science disciplines, especially where the scientific validation or the limits of specificity are unclear or in doubt;
- annually assess and establish a prioritized agenda of research, development and other needsidentify and evaluate already existing but not yet published research to forensic science disciplines and make such research publicly available; and
- enable the development of future forensic technologies and methods that will assist in answering questions posed in criminal investigations or that will increase laboratory capacity to meet the demand for forensic science services and the means to meet such demands.
100E: Funding and resources for uniform forensic standards, accreditation and certification (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges the federal government to provide funding and resources sufficient to:
1. Facilitate the examination of existing standards, accreditation (such as ISO 17025), and certification for (a) laboratories, government and private, (b) examiners/analysts in government and private laboratories, and (c) identified forensic science service providers who offer examination conclusions and/or interpretations of forensic laboratory results. The examination should include a review of applicable timelines and enforcement provisions for implementation and compliance with such standards, accreditation, or certification criteria. Further, the examination should identify gaps and issues existing within such standards and criteria for accreditation and certification. The findings of such examination should be made publicly available.
2. Facilitate the development by existing accreditation and certification boards and organizations of effective and enforceable programs for laboratory accreditation and the certification of qualified laboratory analysts, examiners, pathologists, identified forensic science service providers and others who offer examination conclusions or interpretations.
3. Facilitate efforts to obtain uniformity in standards across state and territorial borders which promote validated protocols and the use of âbest practicesâ for analysis by discipline and method, including, but not limited to, such quality assurance and quality control measures as internal peer review; maintenance of appropriate testing or examination documentation to facilitate external peer review by other experts; internal and external performance audits; regular proficiency testing; and corrective action procedures when proficiency testing or case work errors are discovered;
4. Facilitate the development and adoption of standards and common terminology for the clear communication of scientific testing results including, wherever possible, uniform report content within disciplines;
5. Adopt legislation or provide for the creation of standards that will reasonably ensure public and private laboratory management and staff are free from undue pressure, internal or external, commercial, financial or otherwise, that may affect the quality or integrity of the laboratory examination or analysis;
6. Coordinate the development of a national code of ethics for the forensic sciences among forensic science organizations, government laboratories and the broader scientific community; and facilitate incorporation of such a code of ethics into the accreditation and certification system with mechanisms in place to provide for enforcement and compliance;
7. Conduct research into the study of human error, contextual and confirmational bias and methods and strategies for overcoming such limitations with the goal of informing the development of applicable standards;
8. Establish a process to regularly assess the adequacy of existing forensic education and training programs (at all levels) across disciplines against recognized standards, accreditation and certification criteria, âbest practices,â and protocols; and define an enforcement mechanism for remediation of identified deficiencies. This assessment should take into consideration whether such training or education in the forensic disciplines includes (a) relevant research, (b) changes or modifications to standards for laboratory accreditation, (c) examiner certification, (d) new and developing technologies and protocols for their use, and (e) ethical issues pertinent to the role of the forensic practitioner.
9. Provide necessary incentives to encourage students in the physical and life sciences to pursue studies in fields critical to forensic sciences; develop funding mechanisms and incentives to encourage students to enter into study in the forensic sciences including forensic pathology and other enhanced undergraduate, graduate and post-graduate educational opportunities; and
10. Facilitate the implementation of training in forensic science for law enforcement, lawyers and judges, in such subjects as the scientific method, forensic science disciplines, relevant standards, laboratory accreditation, certification, ethics, and quality assurance and quality control measures.
100F: Funding for integration of homeland security and forensic sciences (CLICK for resolution with background report)
RESOLVED, That the American Bar Association strongly urges the federal government to provide the funds, resources and other support necessary to effectively integrate the forensic science community into the nationâs system of homeland security.
100G: Medico-death investigation standards and accreditation (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges federal, state and territorial governments to provide funding and enact legislation necessary to support requiring that all offices charged with conducting medico-legal death investigation meet mandatory accreditation, certification or professional practice standards within a reasonable time frame; that in consultation and collaboration with the National Institute of Health and the Center for Disease Control and Prevention (CDC), the National Association of Medical Examiners, and the American Board of Medico-legal Death Investigators the federal government provide for the development of appropriate standards; require that , when possible , all death investigations be conducted under the supervision of a board certified forensic pathologist; and ensure that all death investigation facilities meet current CDC requirements. If no board certified forensic pathologist is reasonably available, a death investigation shall be conducted by the most experienced forensic pathologist who is reasonably available and may be submitted for review to a board certified forensic pathologist.
100H: Fingerprint identification system and ballistic information network (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges Congress to enact legislation and authorize and appropriate funds necessary to achieve nationwide interoperability of the Automated Fingerprint Identification System (AFIS); adopt methods for improving the effectiveness of the National Integrated Ballistic Information Network (NIBIN) through operational and technological improvements; develop and implement training for law enforcement officers and evidence collection units in optimizing the effectiveness of NIBIN; and facilitate the development and implementation of a systems interoperability strategy for current and future forensic database systems.
100I: Funding for testing, retesting evidence; expert testimonial assistance (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges federal, state, local and territorial governments, legislative bodies and courts to provide the funds and other resources necessary to assure that in criminal cases an accused (1) is able to obtain the testing or re-testing of evidence, when feasible, by qualified experts and (2) is provided expert testimonial or other assistance when necessary to assure a fair trial or sentencing proceeding.
102: Judicial excellence in child abuse and neglect proceedings (CLICK for resolution with background report)
RESOLVED, That the American Bar Association adopts the black letter Principles and Standards of the Judicial Excellence in Child Abuse and Neglect Proceedings: Principles and Standards for Court Organization, Judicial Selection and Assignment, Judicial Administration, and Judicial Education, dated August 2010.
109A: Counsel for juvenile status offense proceedings (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges state, local, territorial, and tribal governments to provide legal counsel to children and/or youth at all stages of juvenile status offense proceedings, as a matter of right and at public expense.
115: Firearm microstamping technology (CLICK for resolution with background report)
RESOLVED, That the American Bar Association urges federal, state and territorial governments to enact laws requiring that all newly-manufactured semi-automatic pistols be fitted with microstamping technology which would ensure that when a firearm is fired, an alphanumeric and/or geometric code would be stamped on the cartridge casing by way of the firing pin, breech face or other internal surfaces of the firearm, that would enable law enforcement to identify the serial number of the pistol and hence the first known purchaser of a weapon used in a crime
116: Money laundering and terrorist financing (CLICK for resolution with background report)
RESOLVED, That the American Bar Association acknowledges and supports the United States Government's efforts to combat money laundering and terrorist financing;
FURTHER RESOLVED, That the American Bar Association observes that voluntary, risk-based, and updated guidance would assist legal professionals to avoid money laundering and terrorist financing risks when providing services to clients;
FURTHER RESOLVED, That the American Bar Association adopts the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing ("Good Practices Guidance"), and
FURTHER RESOLVED, That the American Bar Association encourages state, local, and specialty bar associations to embrace the Good Practices Guidance and to educate legal professionals and law students regarding the risks addressed by the Guidance.
