Policy Initiatives

 

Index to ABA Criminal Justice Policies, By Meeting

 

Midyear Meeting 1990

8C (North Carolina Bar Association)
(Approved by voice vote)

BE IT RESOLVED, That the American Bar Association supports the lawyers, judges and public officials of Colombia who have refused to surrender their country, their judicial system, or the rule of law to those who traffic in drugs and death, and urges the President and the Congress to provide all appropriate assistance to help our brave colleagues stem the destructive flow of cocaine and other drugs which threaten not only their country, but ours.

BE IT FURTHER RESOLVED, That the American Bar Association provide such support to the judicial system of Colombia as may be appropriate.

8D (Los Angeles County Bar Association)
(Approved by voice vote) (Retained 7/2000)

RESOLVED, That the American Bar Association immediately establish a Task Force to identify the problems facing the criminal and civil justice system and to create solutions to these problems, assigning the highest priority to this project, as a complement to the ABA's other efforts to increase access to our system of justice.

100A (Judicial Administration Division)
(Amended and approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association endorses and supports the Drug Recognition Program initiated by the National Highway Safety Administration and the Bureau of Justice Assistance, provided that it is applied in a manner fully respecting the subject's constitutional rights; and

BE IT FURTHER RESOLVED, That the American Bar Association encourages adoption and use of the Drug Recognition Program by the states and other jurisdictions.

100B (Judicial Administration Division)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association urges state and local bar leaders to take a leadership role in establishing coordinating councils composed of key figures in the criminal justice system who have the authority to ameliorate the problems of crowded jails and the related issue of court delay.

100D (Judicial Administration Division)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the Standards Relating to Court Organization be amended in accordance with the draft dated October, 1989.

100E (Judicial Administration Division)
(Approved by voice vote)

BE IT RESOLVED, That the ABA urges judicial leaders to encourage and promote the full participation in the work forces of the court systems under their jurisdiction of all persons regardless of their race, sex, color, national origin, religion, age or handicap; and

BE IT FURTHER RESOLVED, That the ABA encourages each court system, and each major local court with significant control over personnel administration, to adopt merit-based personnel systems, including specific equal employment opportunity and affirmative action plans, that encompass all facets of court personnel management including recruitment, hiring, training, promotion and advancement; and

BE IT FURTHER RESOLVED, That the ABA calls upon officials within the legislative and executive branches of government who select and appoint persons to the judiciary, and members of judicial selection commissions or advisory groups who assist them, to incorporate affirmative action values as they decide whom to recommend and appoint to judicial positions; and

BE IT FURTHER RESOLVED, That the ABA encourages executive agencies that control or share in the selection of court personnel to implement equal employment opportunity and affirmative action plans and programs as they staff the courts.

101B (Administrative Law & Regulatory Practice)
(Approved by voice vote) (RETAINED 7/2000)

BE IT RESOLVED, That the American Bar Association recommends that -
(1) Congress reconsider section 6483 of the Anti-Drug Abuse Amendments Act of 1988, which provides for civil penalties for personal-use possession of controlled substances, because that section contains inconsistent and ambiguous provisions concerning the availability of formal administrative hearings, standards of proof, the right to counsel, and expungement; and
(2) If Congress wishes to retain civil penalties for personal-use possession of controlled substances, it revise those provisions of section 6486 that pertain to the standards of proof in judicial proceedings involving such penalties, and consider additional revisions to section 6486, such as the handling of uncontested civil penalties in pretrial diversion and clarification of the provisions pertaining to judicial review and expungement.

106(C) (Individual Rights and Responsibilites, CJS, etc.)
(Approved by standing vote of 238-106)

BE IT RESOLVED, That the American Bar Association recognizes the fundamental rights of privacy and equality guaranteed by the United States Constitution, and opposes legislation or other governmental action that interferes with the confidential relationship between a pregnant woman and her physician, or with the decision to terminate the pregnancy at any time before the fetus is capable of independent life, as determined by her physician, or thereafter when termination of the pregnancy is necessary to protect the woman's life or health.

115A (CJS)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association recommends that States and the federal government should adopt procedures ensuring that a prison and jail impact statement be prepared for and considered by a State legislature or Congress before the passage of laws involving the sentencing of convicted criminals, parole policies, and other issues whose resolution may directly lead to an increase in the number of persons incarcerated in correctional facilities or the length of their incarceration; and

BE IT FURTHER RESOLVED, That a prison and jail impact statement should include, at a minimum, the following information:
(a) an estimate of the number of individuals who will annually be incarcerated in or remain incarcerated in prisons or jails as a result of the contemplated legislation being enacted;
(b) an estimate of the amount of additional prison or jail space needed to accommodate the increase in the size of the prison or jail populations;
(c) an estimate of the cost of building additional prisons or jails or of taking other steps to make the space available for the anticipated greater number of incarcerated persons; and
(d) an estimate of the amount by which the expected increase in the number of persons incarcerated in prisons or jails or the duration of their confinement will increase operating expenses, which are the sums incurred when paying for staff, food, supplies, medical care, and the other costs stemming from the supervision, treatment, and care of inmates; and

BE IT FURTHER RESOLVED, That Congress and the State legislatures should not enact legislation that will increase the number of persons incarcerated in correctional facilities or the length of their confinement without taking steps to ensure that either:
(a) the resources, including space and money for increased operating expenses, are already available to handle the increase in the size of the prison or jail populations; or
(b) money is appropriated to cover the costs of implementing the legislation; or
(c) other counterbalancing steps are taken to decrease the size of the prison or jail populations.

115B (CJS)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association urges that jurisdictions considering authorization of contracts with private corporations or other private entities for the operation of prisons or jails do so with extreme caution; and

BE IT FURTHER RESOLVED, That jurisdictions contemplating entering into contracts with private corporations or other private entities for the operation of prison or jail facilities are urged to recognize that:
1. the imposition and implementation of a sentence of incarceration for a criminal offense is a core function of government;
2. there are numerous and complex legal issues involved in the delegation of incarceration functions to private entities; and
3. there is a strong public interest in having prison and jail systems in which lines of accountability are clear, which are operated in a cost-effective fashion, which provide proper care and treatment for inmates, and which meet minimum standards for the operation and maintenance of prisons and jails; and

BE IT FURTHER RESOLVED, That the American Bar Association disapproves of any jurisdiction undertaking a privatization program in order to avoid fundamental questions about its sentencing policies, the use of the incarceration sanction, and the conditions of confinement in publicly operated prisons and jails; and

BE IT FURTHER RESOLVED, That jurisdictions seeking to contract with private entities for the operation of prison or jail facilities should do so in accordance with the "Guidelines Concerning Privatization of Prisons and Jails," dated 03/29/89, and appended to the Report which accompanies this Recommendation.

115C (CJS)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association supports legislation that would create an office or center of correctional education within the U.S. Department of Education to perform certain functions, including but not limited to the following:
(A) coordinate all adult and juvenile correctional education programs within the Department of Education;
(B) provide technical support to State and local educational agencies and to correctional systems on adult and juvenile correctional education programs and curricula;
(C) provide an annual report to Congress on the progress of the office or center and the status of adult and juvenile correctional education in the United States;
(D) cooperate with other federal agencies carrying out correctional education programs to ensure coordination of such programs;
(E) advise the Secretary of Education on correctional education policy; and,br> (F) distribute grant funds that may be available for correctional education within the Department of Education; and

BE IT FURTHER RESOLVED, That the American Bar Association supports legislation that provides for funding of vocational education in adult and juvenile correctional institutions and programs through such mechanisms as the Carl D. Perkins Applied Technology Education Act; and

BE IT FURTHER RESOLVED, That the American Bar Association supports legislative initiatives, at the federal and State levels, that specifically recognize, address, and attempt to correct illiteracy within adult and juvenile correctional institutions and programs.

115E (CJS)
(Approved by voice vote) (Retained 7/2000)

BE IT RESOLVED, That the American Bar Association urges that the following measures be taken in the litigation of death penalty cases:
1) Because many of the defects and delays in habeas corpus procedure are due to the fact that the accused was not represented by competent counsel, particularly at the trial level, the state and federal governments should be obligated to provide competent and adequately compensated counsel for capital defendants / appellants / petitioners, as well as to provide sufficient resources for investigation, expert witnesses, and other services, at all stages of capital punishment litigation. The American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases should govern the appointment and compensation of counsel.
2) The individual or organization responsible for appointing counsel should enlist the assistance of the local bar association and resource center to seek the best qualified attorneys available.
3) Jurisdictions that have the death penalty should establish and fund organizations to recruit, select, train, monitor, support, and assist attorneys involved at all stages of capital litigation and, if necessary, to participate in the trial of such cases.
4) New counsel should be appointed to represent the death-sentenced inmate for the state direct appeal unless the appellant requests the continuation of trial counsel after having been fully advised of the consequences of his or her decision, and the appellant waives the right to new counsel on the record.
5) To avoid the delay occasioned by the appointment of new counsel for post-conviction proceedings and to assure continued competent representation, state appellate counsel who represented a death-sentenced inmate should continue representation through all subsequent state, federal, and United States Supreme Court proceedings.
6) To assure that the state provides competent representation and to avoid procedural delays as well as multiple review of the same issues, the following procedural barriers to federal habeas corpus review should not apply with respect to any state court proceeding at which the state court, in deprivation of the right to counsel recognized in paragraph "1" above, failed to appoint competent and adequately compensated counsel to represent the defendant/appellant/petitioner:
(a) exhaustion of state judicial remedies, (b) procedural default rules; and (c) the presumption of correctness of state court findings of fact.
7) Federal courts should not rely on state procedural bar rules to preclude consideration of the merits of a claim if the prisoner shows that the failure to raise the claim in a state court was due to the ignorance or neglect of the prisoner or counsel or if the failure to consider such a claim would result in a miscarriage of justice.
8) State appellate courts should review under a knowing, understanding, and voluntary waiver standard all claims of constitutional error not properly raised at trial and on appeal and should have a plain error rule and apply it liberally with respect to errors of state law.
9) On the initial state post-conviction application, state post-conviction courts should review under a knowing, understanding, and voluntary waiver standard all claims of constitutional error not properly preserved at trial or on appeal.
10) The federal courts should adopt rules designed to facilitate both the presentation of all available claims in the first habeas corpus petition and the prompt exhaustion of any unexhausted claims in order to eliminate the problem of procedurally forced successive petitions.
11) A rational process of review will be facilitated by a stay of execution that remains in force until the completion of the initial round of state and federal post-conviction review. Therefore, unless the state courts grant a stay of execution, the federal courts, in preservation of their habeas corpus jurisdiction, should grant a stay of execution to run from the initiation of state post-conviction proceedings through the completion of the initial round of federal habeas corpus proceedings, and should be empowered to do so.
12) The petitioner should have a right of appeal from denial of an initial federal habeas corpus petition without the need to obtain a certificate of probable cause.
13) A one-year limitations period should be employed as a substitute mechanism to move the case toward reasonably prompt completion, but only with adequate and sufficient tolling provisions to permit full and fair consideration of a petitioner's claims in state court, federal court, and the United States Supreme Court. The sanction for failure to comply with the time requirements should be dismissal, except that the time requirements should be waived where the petitioner has presented a colorable claim, which has not been presented previously, either of factual innocence or of the petitioner's ineligibility for the death penalty.
14) A federal court should entertain a second or successive petition for habeas corpus relief if:
(a) the request for relief is based on a claim not previously presented by the prisoner in the state and federal courts and the failure to raise the claim is the result of state action in violation of the Constitution or laws of the United States, the result of Supreme Court recognition of a new federal right that is retroactively applicable, or based on a factual predicate that could not have been discovered through the exercise of reasonable diligence; or
(b) the facts underlying the claim would be sufficient, if proven, to undermine the court's confidence in the jury's determination of guilt on the offense or offenses for which the death penalty was imposed; or
(c) consideration of the requested relief is necessary to prevent a miscarriage of justice.
15) The standard for determining whether changes in federal constitutional law should apply retroactively should be whether failure to apply the new law would undermine the accuracy of either the guilt or the sentencing determination.
16) To afford the states a reasonable time to adopt and implement rules and procedures pursuant to these recommendations, the proposed federal statutory and rule changes should take effect upon adoption by the states of provisions in accordance with these recommendations, but not later than two years from the date of enactment of federal legislation; and

BE IT FURTHER RESOLVED, That the American Bar Association commends to Congress the sample legislation attached in Appendix "B" as a way to implement these Recommendations.

118 (Standing Committee on Ethics & Professional Responsibility, CJS)

BE IT RESOLVED, That Rule 3.8 of the Model Rules of Professional Conduct and the Comment to that Rule be amended by adding a new paragraph (f) and Comment as follows: Rule 3.8 Special Responsibilities of a Prosecutor
The Prosecutor in a criminal case shall:
. . . .
(f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless:
(1) the prosecutor reasonably believes:
(a) the information sought is not protected from disclosure by any applicable privilege;
(b) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution;
(c) there is no other feasible alternative to obtain the information; and
(2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding.

Comment
Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. The prosecutor is required to obtain court approval for the issuance of the subpoena after an opportunity for an adversarial hearing is afforded in order to assure an independent determination that the applicable standards are met.

126 (Law Student Division)
(Amended and approved by voice vote) (Archived 7/2000)

BE IT RESOLVED, That the American Bar Association rescinds its prior marijuana policies of 1972 1973 and deplores the use of marijuana and other harmful drugs, which have become one of the nation's most serious and growing public health problems.

BE IT FURTHER RESOLVED, That the American Bar Association urges the President, the Office of National Drug Control Policy and the Congress to substantially increase funding to establish education, prevention and treatment programs as widely as possible to reduce and discourage the use of marijuana and other harmful drugs.

301(St. Comm. Professional Discipline, Ethics Committee, CJS, etc.)
(Amended and approved by voice vote)

BE IT RESOLVED, That it is the policy of the American Bar Association
a. That Department of Justice lawyers may not be given blanket exemption from the requirements of Rule 4.2 of the ABA Model Rules of Professional Conduct or Disciplinary Rule 7-104(a)(1) of the predecessor ABA Model Code of Professional Responsibility as adopted in individual jurisdictions; and
b. to oppose any attempt by the Department of Justice unilaterally to exempt its lawyers from the professional conduct rules that apply to all lawyers under applicable rules of the jurisdictions in which they practice.

Annual Meeting 1990

10H (Association of the Bar of the City of New York
(Approved by voice vote)

RESOLVED, That the American Bar Association support five year reauthorization of the National Endowment for the Arts with no restrictions on the content, the subject matter, message or idea of what the Endowment may fund.

101A (CJS)
(Approved by voice vote) (Retained 7/00)

BE IT RESOLVED, That the American Bar Association, in order to promote compliance with the Money Laundering Control Act (18 U.S.C. Sections_1956, 1957) and the Bank Secrecy Act (31 U.S.C. Section_5322) recommends that the United States adopt prosecution policies to encourage compliance with the Bank Secrecy Act and Money Laundering Control Act by establishing guidelines and standards governing prosecution of financial institutions; and

BE IT FURTHER RESOLVED, That the standards and guidelines should encourage financial institutions to adopt comprehensive Bank Secrecy Act compliance programs and anti-money laundering programs, and to cooperate with law enforcement authorities.

101B (CJS)
(Approved by voice vote) (Retained 7
00)

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated August, 1990, to Chapter Five, "Providing Defense Services," of the Second Edition American Bar Association Standards For Criminal Justice.

102 (Military Law)
(Approved by voice vote) (Retained 7
00)

RESOLVED, That the American Bar Association recommends that the military continue to operate a system of corrections for military prisons and opposes any transfer of management or operations of the military correctional system to the Federal Bureau of Prisons.

Midyear Meeting 1991

103 (CJS; Committee on Legal Aid and Indigent Defendants)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association supports Congressional legislation mandating the inclusion of state and local indigent defense programs among those programs eligible for fund under the Anti-Drug Abuse Act of 1988 and similar federal laws, further mandating the inclusion of research, training and technical assistance programs for state and local indigent defense systems in the Discretionary Grant Programs under the Bureau of Justice Assistance and similar federal agencies; and

BE IT FURTHER RESOLVED, That the American Bar Association urges Congress to authorize and appropriate funding to assist state and local governments in implementing the constitutional obligation provide effective assistance of counsel for indigent defendants state and local proceedings; and

BE IT FURTHER RESOLVED, That the American Bar Association urges state legislatures in those states where funding for indigent defense services is primarily provided at the local level to increase the level of state funding.

104A (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association urges the United States Department of Justice, and state and local prosecutor agencies, to promulgate guidelines to govern the use of civil or criminal forfeiture; and

BE IT FURTHER RESOLVED, That these internal guidelines should contain provisions that require consideration of and protections for the interests of innocent third parties that may be affected directly or indirectly by forfeiture or asset freezing orders; and

BE IT FURTHER RESOLVED, That a procedure for appropriate internal agency review of forfeiture charges and asset freeze or orders be implemented to ensure compliance with applicable guidelines, the appropriate use of forfeiture provisions, and the protection of innocent third party interests.

104C (CJS)
Revised by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated February, 1991, to Chapter Eight, "Fair Trial and Free Press," of the Second Edition American Bar Association Standards for Criminal Justice, as revised.

104D (CJS)
Revised by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated February, 1991, to Chapter Four, "The Defense Function," of the Second Edition American Bar Association Standards for Criminal Justice, as revised.

104E (CJS; IR&R)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association recommends that the Congress of the United States not enact legislation similar to H.R.5050 and S.2735 of the 101st Congress, granting the Federal Bureau of Investigation the unrestricted authority to issue administrative summonses in criminal investigations; and

BE IT FURTHER RESOLVED, That the American Bar Association also recommends that prior to the consideration of any legislation granting the Federal Bureau of Investigation authority to issue administrative summonses, full hearings be held by the appropriate committees of the House and the Senate.

Annual Meeting 1991

10F (Special Committee on the Drug Crisis; Boston BA; Maryland State BA; San Diego County BA; Bar Association of Baltimore City; Rhode Island BA; Cleveland BA; Bar Association of Metropolitan St Louis)

BE IT RESOLVED, That the American Bar Association urges state and local bar associations to establish special committees to inform the bar on all aspects of the drug crisis, to study the impact, consequences and effectiveness of current drug policies on their areas' entire justice system, to participate in an examination and improvement of our nation's drug policies and facilitate the participation by their members in anti-drug programs in their communities.

10D (Standing Committee on Federal Judicial Improvements; CJS; Commission on Women in the Profession; Commission on Opportunities for Minorities in the Legal Profession; Association of the Bar of the City of New York; Boston Bar Association
The recommendation was approved as amended. As approved, it reads:

RESOLVED, That the American Bar Association supports the enactment of authoritative measures, requiring studies of the existence, if any, of bias in the federal judicial system, including bias based on race, ethnicity, gender, age, sexual orientation and disability, and the extent to which bias may affect litigants, witnesses, attorneys and all those who work in the judicial branch.

BE IT FURTHER RESOLVED, That the American Bar Association urges that such studies should include the development of remedial steps to address and eliminate any bias found to exist.

10A (CJS; National Conference of Federal Trial Judges; Illinois State Bar Association)
Approved by voice vote. It reads:

BE IT RESOLVED, That the Association recommends that the Judicial Conference of the United States' Advisory Committee on Criminal Rules encourage the United States District Courts to fashion remedies in appropriate individual cases, or encourage adoption of local rules in selected Districts, to address the issue of long trials involving numerous defendants, often referred to as "megatrials," which create substantial risks to the fair administration of justice.

105A (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the procedures for revising the ABA Standards For Criminal Justice be amended to provide that a majority vote, rather than a two-thirds vote, of the Criminal Section Council members present is required to authorize a Recommendation to amend the Standards.

105B (CJS)

By voice vote, the House deferred action on the recommendation urging the enactment by each state of an Adult Community Corrections Act to facilitate the establishment of a comprehensive adult community corrections program.

117B(IR&R)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association, without taking a position on the enactment of general federal death penalty legislation, supports in principle legislative measures which would prevent or minimize any disproportionate effects of general federal death penalty legislation on Native Americans subject to federal jurisdiction.

302 (Judicial Administration Division)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association supports legislation by each state legislature and the United States Congress mandating the preparation of judicial system impact statements to be attached to each bill or resolution that affects the operations of State or Federal courts; and

BE IT FURTHER RESOLVED, That the American Bar Association urges each state legislature and Congress to establish a mechanism within its budgeting process to prepare judicial system impact statements determining the probable costs and effects of each bill or resolution that has an identifiable and measurable effect on the dockets, work loads, efficiency, staff and personnel requirements, operating resources and currently existing material resources of appellate, trial and administrative law courts; and

BE IT FURTHER RESOLVED, That the American Bar Association urges that if proposed legislation has an identifiable and measurable effect on the judiciary, a judicial impact statement be attached to each such bill or resolution before a committee hearing may be conducted on the bill or resolution and that the judicial impact statement must be printed on the first page of such committee report and all subsequent printings and must remain on the bill or resolution throughout the legislative process, including submission to the chief executive, (Governor or President) for approval.

110A (Young Lawyers Division)
Approved by voice vote with an amendment accepted by the proponents. As approved, it reads:

BE IT RESOLVED, That the American Bar Association supports the enactment of federal, state and territorial legislation that: 1) Encourages the establishment of educational programs directed at school children, their parents, and juvenile services professionals on firearm safety for children, including the dangers of the use of such weapons; 2) Provides for stricter regulation of, and manufacturer's warnings on, "BB" guns and air rifles; and 3) Provides criminal penalties for adults' failure to properly safeguard firearms and ammunition they own or control, thereby placing minors at risk of death or injury.

101 (Los Angeles County Bar Association)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association recognizes that the highest priority of the bar and bench must be to promote improvements in the American system of justice by ensuring balanced and adequate funding for, and timely access to, the entire justice system and urges Association entities, state and local bars and affiliated organizations to form coordinated action committees with non-lawyer groups to:
1. Assess the depth and breadth of the crisis in their jurisdictions; 2. Design and implement an action plan to attack the crisis and maintain and improve balanced and adequate funding for the entire justice system; and 3. Educate policy makers that their actions may have consequences for the entire justice system well beyond their intended purpose.

Midyear 1992

10A (Kansas Bar Association; State Bar of Michigan; South Carolina Bar; North Carolina SB; Hawaii SBA; Maryland SBA; Maine SBA; Massachusetts BA, Mississippi Bar; Alabama SB; State Bar of Nevada; cosponsored by Washington SBA, Louisiana SBA, Tennessee BA, Tulsa County BA, State Bar of South Dakota,)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association establish standards for accrediting private organizations which certify lawyers as specialists, and that it establish and maintain a mechanism to accredit such organizations which meet those standards.

10F (Los Angeles County BA, Special Committee on Funding the Justice System)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association supports federal, state, territorial and local legislation mandating the use of Justice System Impact Statements to be attached to all legislation or resolutions and executive branch orders or actions that have an identifiable and measurable impact on the operation of one or more elements of the criminal and civil justice system.

BE IT FURTHER RESOLVED, That the American Bar Association urges the establishment of appropriate mechanisms at the federal, state, territorial and local levels to ensure the preparation of the justice system impact statements that examine and analyze the funding, workload, and resource impact of proposed legislation and executive branch orders or actions for each and every element of the criminal and civil justice system, including, but not limited to, law enforcement, prosecution, public defense, probation, corrections, courts, civil legal services and dispute resolution.

100 (Judicial Administration Division)
The recommendation was to adopt amendments to the American Bar Association Standards Relating to Trial Courts.* The House amended the proposed Standards as follows:

Proposed Standard 2.31 (Responsibilities of Judges and Lawyers), was amended to read:
Judges are responsible for the prompt and just disposition of matters assigned. The bench has the duty to control the movement of cases through the system. The bar has a duty to cooperate by being ready to proceed with scheduled matters. Judges should not grant, nor should lawyers request, postponement except for good cause. Cooperation between the bench and the bar is essential in accomplishing overall management of the trial court.

Proposed Standard 2.32 (Disqualification of Judges), was amended to read:
2.32 Disqualification of Judges. A judge should be subject to disqualification for cause on the grounds set forth in the American Bar Association Model Code of Judicial Conduct (1990). A judge against whom a motion to disqualify for cause is made may be authorized to determine whether it is legally sufficient on its face, but factual issues raised by the motion should be heard and resolved by another judge. The filing of a complaint with the disciplinary commission is not in itself sufficient to cause disqualification of that judge.

Proposed Standard 2.38 (Media Coverage in the Courtroom) was amended to read:
Each state supreme court should adopt rules regulating television and radio broadcasting and taking of still photographs in the courtroom. These rules should apply statewide and preserve the dignity, decorum, and substance of the judicial process.

Proposed Standard 2.71 (E) was amended to read:
In a domestic dispute situation, take steps necessary to protect the victim. Steps to protect the victim include where sufficient evidence exists: Confining the abuser, issuing proper restraining orders, suppressing the victim's address, ordering abusers into counseling or treatment, and ordering family support. The court should understand the dynamics of domestic abuse, especially the psychological effects on the victim. The court should make decisions designed to stop the abuse. The court should expedite the hearings.

The Division's recommendation was then approved by voice vote. It reads:

RESOLVED, That the black letter Standards Relating to Trial Courts be amended in accordance with the draft dated November, 1991, as amended.

101A (CJS)
The recommendation was to adopt amendments to Chapter Three, "The Prosecution Function," of the Second Edition American Bar Association Standards For Criminal Justice. The House amended the proposed Standards as follows:

Proposed Standard 3-2.9 (e) was amended to read as follows:
(e) A prosecutor, without attempting to get more funding for additional staff, should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the interests of justice in the speedy disposition of charges, or may lead to the breach of professional obligations.
Proposed Standard 3-3.9(c) was amended to read as follows:
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused.
The Section's recommendation was then approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated February, 1992, to Chapter Three, "The Prosecution Function," of the Second Edition American Bar Association Standards For Criminal Justice, as amended.

101B (CJS)
Revised by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association supports the reauthorization of the Juvenile Justice and Delinquency Prevention Act but urges that Congress conduct comprehensive public hearings to determine the effectiveness of the Act and to examine its future goals and objectives.

BE IT FURTHER RESOLVED, That in the event Congress decides to reauthorize the Act, any such reauthorization should include:
adherence to an unbiased, responsible agenda for research, development and demonstration programs; diversification of training; guarantees of juveniles' right to counsel; improvement of conditions of confinement; and a commitment to alternatives to confinement; a prohibition on secure confinement of status offenders; curtailing waivers for States and Territories which do not comply with the Act's objectives; and strict Congressional oversight of the Act and its implementation.

101C (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association urges States, territories, localities, judges, prosecutors, defense attorneys, and correctional officials to take steps to increase literacy among criminal offenders; and

BE IT FURTHER RESOLVED, That the American Bar Association supports a mandate requiring every correctional system to make available to criminal offenders a wide array of adult basic education programs; and

BE IT FURTHER RESOLVED, That the American Bar Association endorses the use of mandatory literacy programs to reduce illiteracy among criminal offenders, provided that the programs meet the following requirements:
1. Inmates are not denied parole or their incarceration otherwise extended because they are illiterate.
2. The programs are of high quality.
3. Special education programs are provided for offenders with developmental or learning disabilities.
4. Offenders who, because of a medical, developmental, or learning disability, cannot meet the literacy-level requirement and cannot reasonably be expected to benefit from participation in a functional literacy program are not required to participate in the program.
5. Appropriate incentives are developed to encourage and reward offenders' participation in the programs.
6. Ensure that there is coordination between literacy programs for offenders in community corrections programs, in prisons, in jails, and on parole.
7. The programs are adequately funded; and

BE IT FURTHER RESOLVED, That the "Model Literacy Act for Adult Offenders," dated July 1991, is offered as a suggested example for jurisdictions considering mandatory literacy programs for adult offenders.

101D (CJS)
Revised by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association urges each State and Territory to enact an Adult Community Corrections Act to facilitate the establishment of a comprehensive adult community corrections program, and offers the "Model Adult Community Corrections Act," dated May 9, 1991, as a suggested example.

101E (CJS) Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association urges the Judicial Conference of the United States to recommend amendments to the Federal Rules of Criminal Procedure to implement the concepts embodied in the following proposed rule changes:
I. Proposed Rule 16 (a)(1)(E)
Upon request by a defendant or as it otherwise becomes known to the government, the government shall promptly furnish to the defendant all evidence within the possession, custody or control of the government which tends to exculpate the defendant of the crimes charged in the indictment or tends to mitigate the defendant's sentence. The government shall have a continuing obligation to furnish the defendant such material as it becomes known or available to the government.
II. Proposed Rule 16 (a)(1)(A)
Upon request of a defendant the government shall permit the defendant to inspect and copy of photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; and recorded testimony of the defendant before a grand jury which relates to the offense charged. Where the defendant is a corporation, partnership, association or labor union, [the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who] it can inspect and copy or photograph any such relevant written or oral statements or testimony where the statements or testimony were made by a person who (1) was, at the time of the statement or [that] testimony, so situated as a [n] director, officer, [or] employee or agent as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as a [n] director, officer, [or] employee or agent as to have been able legally to bind the defendant in respect to that alleged conduct in which the witness was involved.
III. Proposed Amendment to Rule 17(c)
A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. [the court may direct that] Upon the consent of the government, the defendant, and the person subpoenaed, or upon order of the court, a subpoena may require the production of books, papers, documents or objects [designated in the subpoena be produced before the court] at a time prior to the trial or prior to the time when they are to be offered in evidence, and in such case the subpoena may be complied with by production of the subpoenaed books, papers, documents or objects directly to the parties or their attorneys, unless the court orders otherwise. [and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.]
IV. Proposed Amendments to Rule 16(a)(1)(D) and (b)(1)(B)
To amend Rule 16 (a)(1)(D) by adding:
Upon request of the defendant, the government shall disclose its intention to call an expert witness at trial. The government shall also provide the area of expertise for which the witness will be offered. If no such notification is made at least ten days prior to the first day of trial, the court shall not allow the testimony of the expert witness in the absence of a showing of good cause for the lack of notification.
To amend Rule 16 (b)(1)(B) by adding:
Upon request of the government, the defendant shall disclose his intention to call an expert witness at trial. The defendant shall also provide the area of expertise for which the witness will be offered.
If no such notification is made at least ten days prior to the first day of trial, the court shall not allow the testimony of the expert witness in the absence of a showing of good cause for the lack of notification.*

102 (Judicial Administration Division; National Conference of Federal Trial Judges, Standing Committee on Federal Judicial Improvements
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association endorses the recommendation of the Federal Courts Study Committee for an immediate, in depth and independent study of the actual operation of the Federal Sentencing Guidelines System to determine whether the system is fair and effective, and whether it meets Congressional objectives.

104 (Judicial Administration Division National Conference of State Trial Judges
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association adopts the black letter "Trial Management Standards"* as follows:
1. Judicial trial management -- general principle: the trial judge has the responsibility to manage the trial proceedings. The judge shall be prepared to preside and take appropriate action to ensure that all parties are prepared to proceed, the trial commences as scheduled, all parties have a fair opportunity to present evidence, and the trial proceeds to conclusion without unnecessary interruption.
2. The trial judge and trial counsel should participate in a trial management conference before trial.
3. After consultation with counsel, the judge shall set reasonable time limits.
4. The trial judge shall arrange the court's docket to start trial as scheduled and provide parties the number of hours set each day for the trial.
5. The judge shall ensure that once trial has begun, momentum is maintained.
6. The judge shall control voir dire.
7. The judge's ultimate responsibility to ensure a fair trial shall govern any decision to intervene.
8. Judges shall maintain appropriate decorum and formality of trial proceedings.
9. Judges should be receptive to using technology in managing the trial and the presentation of evidence.

122A (Committee on Federal Judicial Improvements)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association supports the re-establishment in the United States Department of Justice of the Office for Improvements in the Administration of Justice (OIAJ) with broad authority to pursue a range of programs and projects relating to the entire justice system.

BE IT FURTHER RESOLVED, That the Office be headed by an Assistant Attorney General, under the direction of the Attorney General.

BE IT FURTHER RESOLVED, That OIAJ be authorized and responsible for developing ways to improve the operation of the civil and criminal justice system and to enhance citizen access to justice.

Annual Meeting 1992

111 (International Criminal Court Task Force)
Proponents presented a substitute resolution jointly with the New York State Bar Association, which was approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association recommends that the U.S. Government work toward finding solutions to the numerous important legal and practical issues identified in the accompanying reports of the Task Force on an International Criminal Court and the New York State Bar Association, with a view toward the establishment of an international criminal court, considering the following principles and issues:
A. Jurisdiction of the court shall be concurrent with that of member states. It may cover a range of well established international crimes, but member states shall be free to choose by filing a declaration of the crimes they shall recognize as within the court's jurisdiction.
B. No person shall be tried before the court unless jurisdiction has been conferred upon the court by the state or states of which he is a national and by the state or states in which the crime is alleged to have been committed.
C. The fundamental rights of an accused shall be protected by appropriate provisions in the court's constituent instruments and in its rules of evidence and criminal procedure.
D. The obligations of states under the court's constituent instruments shall be enforced by sanctions.

Midyear Meeting 1993

107A (Committee on Military Law)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association supports changes to the Rules for Courts-Martial to provide an opportunity for convicted service members to review and submit matters for consideration at all stages of military administrative review and to provide an opportunity for convicted service members to review and submit petitions requesting certification to the United States Court of Military Appeals.

BE IT FURTHER RESOLVED, That the American Bar Association supports amendments to the Rules for Courts-Martial 1112 and 1201(b) to permit convicted service members to review and submit matters for consideration by military administrative reviewing authorities.

BE IT FURTHER RESOLVED, That the American Bar Association supports amendments to the Rules for Courts-Martial 1203(c) to provide an opportunity for convicted service members to review and submit petitions to the appropriate service Judge Advocate General for certification of a case to the United States Court of Military Appeals.

107B (Military Law Committee)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association supports legislation to amend the Victims of Crime Act of 1984:
1) to recognize that victims of crimes committed under the Uniform Code of Military Justice are entitled to receive the benefits intended to compensate other victims under the Act;
2) to make compensation available to nonworking spouses and children who are victims under the Act;
3) to expand the geographic applicability of the Act to include U.S. citizens and their family members who may be outside the United States and who may become victims of crimes committed under the Uniform Code of Military Justice.

108A (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated February, 1993 to Chapter Eighteen, "Sentencing Alternatives and Procedures" and to Chapter Twenty, "Appellate Review of Sentences," of the Second Edition American Bar Association Standards For Criminal Justice.7

108B (CJS); cosponsored by the Section of Business Law)
Revised by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association urges the appropriate committees of the Judicial Conference of the United States to address problems that may arise as a result of parallel and concurrent civil and criminal proceedings, including amendment of relevant federal procedural rules.

108C (CJS)
Amended and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association approves the Uniform Victims of Crime Act promulgated in 1992 by the National Conference of Commissioners on Uniform State Laws, to the extent that the Act is not inconsistent with Association policies and standards, as an appropriate Act for those states desiring to adopt the substantive law suggested therein.

Annual Meeting 1993

10G (Committee on the Drug Crisis; CJS; Boston BA)
Approved as amended. As approved, it reads:

BE IT RESOLVED, That the American Bar Association urges state, territorial and local bar associations to establish policies in support of community service programs that (1) challenge teens and young adults to develop a sense of purpose and self-worth, (2) revitalize urban areas by fostering civic pride and volunteerism and (3) join with coalitions to help prevent the erosion of families and communities through drug abuse and related crime and violence.

BE IT FURTHER RESOLVED, That the American Bar Association urges state, territorial and local bar associations to encourage participation in community service programs by bar members, law firms, and law schools.

100 (Military Law Committee; Commission on Women in the Profession; cosponsored by Judge Advocates Association and Standing Committee on Lawyers in the Armed Forces)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association recommends that Article 93, Uniform Code of Military Justice (UCMJ) (10 USC § 893) be amended to establish expressly sexual harassment of a military subordinate by a military superior in a duty setting as a criminal offense triable by court-martial.

BE IT FURTHER RESOLVED, That the American Bar Association recommends that Article 93, UCMJ, be amended to be gender-neutral.

101 (Bar Association of San Francisco; Association of the Bar of the City of New York; Philadelphia BA, Beverly Hills BA, Alameda County BA, IR&R; cosponsored by CJS)
Revised and amended and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association supports federal, territorial and state legislation which would restrict the sale and possession of assault weapons to the military and law enforcement organizations.

BE IT FURTHER RESOLVED, That the American Bar Association urges state, territorial and local bar associations, and all of their respective members, to join with the ABA in the effort to pass such legislation.

101A (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated August, 1993, to Chapter Fifteen, "Trial by Jury," of the Second Edition American Bar Association Standards for Criminal Justice.14

101B (CJS)
Revised and amended and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association urges adoption of amendments to the Independent Counsel provisions of the Ethics in Government Act as follows:
1. Allowing the Attorney General to decline cases involving technical, yet benign, violations of the law, subject to the review of an independent counsel;
2. Allowing the Department of Justice the use of subpoenas duces tecum during the preliminary investigation;
3. Increasing the time allowed for the initial review of allegations from 15 days to 30 days;
4. Imposing initial pre-indictment tenure limitations of eighteen months and initial pre-indictment budgetary limitations of $1,500,000 on an independent counsel, subject to court authorized extensions of equal terms and/or amounts under the standard of 28 U.S.C. Section 596(b) (2).
5. Expanding the eligibility for service on the Special Division of the Court and requiring the establishment of rules of procedure and avenues of appellate review relating to actions of the Special Division.

101C (CJS)
Revised and amended by the proponents and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association encourages all federal, state, territorial and local detention and correctional facilities and programs to seek and to maintain accreditation by the Commission on Accreditation for Corrections and the National Commission on Correctional Health Care as a step toward maintaining proper conditions of detention and corrections; and

BE IT FURTHER RESOLVED, That the American Bar Association urges the Commission on Accreditation for Corrections and the National Commission on Correctional Health Care to review their processes, procedures and standards on an ongoing and open basis to ensure that only facilities and programs that comply with constitutional requirements, meet sound professional standards, and provide a decent, safe and humane environment are accredited.

300 (Specialization Committee)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association accredits the following designated specialty certification programs for lawyers:
1. Civil Trial Advocacy program of the National Board of Trial Advocacy, Boston, MA:
2. Criminal Trial Advocacy program of the National Board of Trial Advocacy, Boston, MA:
3. Business Bankruptcy program of the Commercial Law League of America Academy of Commercial and Bankruptcy Law Specialists, Chicago, IL;
4. Creditors' Rights program of the Commercial Law League of America Academy of Commercial and Bankruptcy Law Specialists, Chicago, IL;
5. Business Bankruptcy program of the American Bankruptcy Board of Certification, Washington, D.C; and
5. Consumer Bankruptcy program of the American Bankruptcy Board of Certification, Washington, D.C;

Board of Governors (November 1993)
(Commissions on Women in the Profession and Opportunities for Minorities in the Profession)
The Board amended, then approved the recommendation, to read as follows:

RESOLVED, That it is inappropriate for an Officer of the Association or a member of the Board of Governors to be a member of a club which discriminates, by policy or in practice, on the basis of race, color, sex, religion, disability or national origin (a "Discriminatory Club").

FURTHER RESOLVED, That current members of the Board and Officers of the Association and those nominated for such positions in February of 1994 who hold membership in a Discriminatory Club, should, by no later than November of 1994, resign from such Club, unless by such date such Club no longer constitutes a Discriminatory Club. After such date, no Officer of the Association and no member of the Board should be a member of a Discriminatory Club while serving in such position.

Midyear Meeting 1994

8 (Committee on the Drug Crisis; Boston Bar Association; cosponsored by CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association encourages the adoption of voluntary, pretrial drug testing programs to assist judicial officers in determining appropriate conditions of release; and

BE IT FURTHER RESOLVED, That adequate treatment should be provided to assist individuals in complying with a release order requiring pretrial drug testing; and

BE IT FURTHER RESOLVED, That the framework for conditional release involving pretrial drug testing should include graduated sanctions; and

BE IT FURTHER RESOLVED, That there should be procedures in place to ensure the integrity of the testing program and accuracy of test results; and

BE IT FURTHER RESOLVED, That the results of pretrial drug testing, or refusal to submit to such testing, should not be admissible as evidence of the guilt of a defendant on an underlying charge.

8D (Bar Association of San Francisco; CJS; Task Force on Gun Violence, Beverly Hills BA, Santa Clara County BA, Litigation, King County BA, Association of the Bar of the City of New York, the CJS, the Alameda County Bar Association; cosponsored by Section of Science and Technology, Steering Committee on Unmet Legal Needs of Children, Section of Real Property, Probate and Trust Law and Denver BA
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association, which has for almost 30 years supported policies regulating the use and sale of guns, reminds the public of the Association's long standing opposition to uncontrolled use and sale of guns and its commitment to public safety; issues the warning that guns have now become the most visible instrument of violence in what has become a culture of violence of which children and youth have become victims; and reaffirms the following Association policies respecting regulation of firearms:
1965: Support legislation amending the Federal Firearms Act of 1934 to, inter alia, require licensing of dealers in interstate commerce of firearms; prohibit sales to felons, fugitives, persons under indictment, adjudicated mental incompetents and minors; restrict sale of handguns to residents of the state where purchased; and control commerce and importation of larger caliber weapons and firearms in general.
1973: Support legislation to limit sale and possession of cheap foreign-made handguns.
1975: Support amending the Gun Control Act of 1968 to, inter alia:
prohibit interstate sales by unlicensed persons of ammunition and firearms components; define the term "firearms for sporting purposes";
upgrade standards of eligibility for licensing of dealers, requiring background checks of applicants and making conferral of such licenses discretionary rather than mandatory;
require dealers, manufacturers, transporters and importers of firearms and ammunition to provide adequate and secure storage facilities in order to reduce theft of firearms and ammunition;
mandate a waiting period prior to firearms purchases for a criminal background check by the Bureau of Alcohol, Tobacco and Firearms;
encourage severe, but not mandatory, penalties for offenses involving firearms;
and require periodic review of eligibility of handgun possessors consistent with due process of law.
1983: Oppose efforts to repeal provisions of the Gun Control Act of 1968; endorse effective and proven measures to control the "possession" of handguns; support enactment of appropriate penalties to deter firearms-related crime.
1991: Support the enactment of legislation encouraging gun safety education programs and providing for penalties for adults' failure to properly safeguard firearms.
1993: Support legislation to limit availability of assault weapons to the military and law enforcement organizations.

BE IT FURTHER RESOLVED, That the American Bar Association urges legislative bodies to vigorously pursue solutions to the problem of gun violence consistent with existing ABA policy.

BE IT FURTHER RESOLVED, That the American Bar Association instructs the Task Force on Gun Violence to report to the House of Delegates at the August 1994 Meeting as to policy recommendations further addressing the problem of gun violence.

100 (Committee on the Drug Crisis; cosponsored by CJS, Ohio State Bar Association)
Revised by the proponents and approved by voice vote. As approved it reads:

BE IT RESOLVED, That the American Bar Association supports the development of a comprehensive, systemic approach to addressing the needs of defendants with drug and alcohol problems through multidisciplinary strategies that include coordination among the criminal justice, health, social service and education systems, and the community.

BE IT FURTHER RESOLVED, That the American Bar Association urges the courts to adopt treatment-oriented, diversionary drug court programs as one component of a comprehensive approach that (i) intervene with drug-involved defendants immediately after arrest and divert eligible defendants to treatment programs in lieu of criminal prosecution, (ii) provide carefully structured treatment programs with explicit criteria governing the successful and unsuccessful participation of defendants, including the identification of clear expectations as to the defendant's responsibilities for participation in the program, (iii) establish the expected outcomes of the program with periodic evaluation; (iv) require frequent and direct contact with a supervising judge and the courtroom team assigned to the judge; and (v) target carefully the population of defendants with drug-related problems to be served by the program to maximize the program's effectiveness.

BE IT FURTHER RESOLVED, That the American Bar Association urges state, local and territorial bar associations to facilitate the development of treatment-oriented, diversionary drug court programs that result in dismissal of drug-related charges upon the completion of drug rehabilitation.

102 (CJS)
Amended and approved by voice vote. As approved it reads:

BE IT RESOLVED, That the American Bar Association supports the principle that the act of contacting or retaining an attorney should not be admissible as evidence of consciousness of guilt.

103 (Individual Rights and Responsibilities; CJS, LSD, YLD, NAWL)
Approved by voice vote. It reads:

RESOLVED, That the American Bar Association, in its efforts to promote the United States' ratification of the United Nations Convention on the Rights of the Child, and previously having endorsed such ratification in principle, suggest that such ratification be accompanied by Reservations, Understandings, and Declarations as follows:
1. Addressing Article 30 of the Convention, a Reservation that the United States may regulate the practice of religion to the extent that such regulation is permitted by the United States Constitution;
2. Addressing Article 37 of the Convention, a Reservation that United States jurisdictions, pursuant to existing law, may continue to confine within adult correctional facilities certain children who have committed offenses, even when such confinement may not be in the "best interests of the child" in a particular case;
3. Addressing Articles 9, 37, and 40 of the Convention, an Understanding that these Articles permit United States jurisdictions to separate a child from his or her parents against their will even if such separation may not be considered to be in the "best interests of the child," if such separation results from deprivations of liberty duly imposed for infringements of penal law;
4. Addressing Article 10 of the Convention, an Understanding that United States jurisdictions may determine the "exceptional circumstances" warranting restriction of a child's relations and contacts with parents in different states in accordance with the "best interests of the child" standard articulated in Article 9;
5. Addressing Article 28 and other provisions of the Convention, an Understanding that the Convention prohibits corporal punishment in the schools and that the United States government will take appropriate measures to bring relevant laws into conformance with this prohibition;
6. Addressing Article 29 of the Convention, an Understanding that the United States is not required to regulate private educational institutions in any way beyond that which is permitted by the First Amendment to the United States Constitution;
7. A Declaration that this Convention imposes no legal obligations on the United States regarding the voluntary interruption of pregnancy and that this Convention cannot be interpreted as affecting laws in the United States relating to such interruptions;
8. A Declaration that, for purposes of the Convention's Article 1 definition of "child," the age of majority in the United States is age 18.

106 (Committee on Federal Judicial Improvements; cosponsored by National Conference of Federal Trial Judges, Sections of Urban, State and Local Government Law and Science and Technology)
Revised by the proponents and approved by voice vote. As approved it reads:

RESOLVED, That the American Bar Association supports in principle the following conclusions and recommendations set forth in the March 1993 Report of the Carnegie Commission on Science, Technology and Government entitled Science and Technology in Judicial Decision Making:
1. The present adversarial process is competent to manage the problems associated with the complex issues of science and technology which come before the Court.
2. Judges should take an active role in managing the presentation of scientific and technological issues in litigation whenever appropriate.
3. Scientific and technical issues should be integrated into traditional judicial education programs.
4. Institutional linkages between the judicial and scientific communities should be developed to facilitate judicial education and to further understanding between such communities.
5. An independent non-governmental Science and Justice Council of judges, lawyers, scientists and others should be established to monitor changes that may have an impact on the ability of the courts to manage and adjudicate scientific and technological issues; it should also initiate improvements in the courts' access to and understanding of scientific and technological information.

Annual Meeting 1994

10E (Gun Violence Task Force; Bar Association of San Francisco, Santa Clara County BA, Beverly Hills BA, Alameda County BA, Section of Litigation; cosponsored by CJS, Los Angeles County BA, Government and Public Sector Lawyers Division, Standing Committee on Public Education)
Amended and approved by voice vote.11 As approved, it reads:

BE IT RESOLVED, That the House of Delegates calls on the American Bar Association and all other concerned institutions to address the myriad of problems which contribute to the culture of violence in society, and develop a national agenda to address these problems.

BE IT FURTHER RESOLVED, That leaders of the legal profession join and work with our counterparts in the medical, teaching, religious, civic, law enforcement and other professions, to prevent and reduce gun violence, including efforts to:
1. Educate the public regarding the causes, risks and costs of gun violence;
2. Educate the public and lawmakers regarding the meaning of the Second Amendment to the United States Constitution, to make widely known the fact that the United States Supreme Court and lower federal courts have consistently, uniformly held that the Second Amendment to the United States Constitution right to bear arms is related to "a well-regulated militia" and that there are no federal constitutional decisions which preclude regulation of firearms in private hands; and
3. Promote the provision of volunteer legal research for and assist governmental entities seeking to enact or enforce laws aimed at reducing gun violence.

BE IT FURTHER RESOLVED, That the American Bar Association supports a national approach and a strengthened federal role to reduce gun violence, through the regulation of the sale, transfer and possession of firearms, and supports legislation to amend the Gun Control Act of 1968, to:
1. Expand the list of persons prohibited from receiving or possessing firearms under the Act to include persons convicted of violent misdemeanors; persons convicted of spousal abuse or child abuse; and persons subject to a protective order;
2. Require a special federal license for any person to possess a "personal arsenal" of firearms or ammunition;
3. Provide that Federal Firearms Licenses (FFL) be limited to bona fidefirearms dealers and require: compliance with state and local laws; adequate business liability insurance; an annual fee sufficient to cover the costs ofinvestigating license applications; an increased number of permitted yearly inspections; thorough background checks of employees; cooperation with criminal investigations and reporting of all gun thefts to ATF and local police; permitted gun sales to be limited to the location of the licensed premises; ammunition sales and sales of component parts of handguns to meet FFL requirements; and
4. Provide authority to ATF, or other appropriate federal agency, to regulate firearms as consumer products, to set minimum mandatory safety standards such as requiring child-safe locking devices, to issue recalls of defective products and prohibit sales of firearms failing to meet minimum safety standards, and to disseminate safety information to the public.

BE IT FURTHER RESOLVED, That the American Bar Association, recognizing the singular role of handguns in the epidemic of gun violence in our society, supports enactment of legislation to:
1. Require persons to obtain and maintain a current handgun license, with background check, age, residency, safety training and insurance requirements, in order to buy or otherwise receive transfer of any handgun or handgun ammunition;
2. Require that all handguns be registered and all newly manufactured handguns be equipped with safety features in order to reduce accidental injuries; and
3. Increase the federal tax on handguns and the tax on handgun ammunition, with the proceeds dedicated to a fund to treat the victims of gun violence and to finance educational programs to reduce gun violence.

10C (Steering Committee on Legal Needs of Children and Their Families, Government and Public Sector Lawyers Division, Young Lawyers Division, Sections of Individual Rights and Responsibilities and Litigation, Hawaii State Bar Association, National Conference of Women's Bar Associations; cosponsored by CJS and Commission on Women in the Profession)
Amended and approved by voice vote. As approved, it reads:

BE IT RESOLVED, That the American Bar Association reaffirms its commitment to unified children and family courts adopted in 1980 and set forth in the American Bar Association Standards Relating to Court Organization and Administration14, Standard 1.1 and adopted as well by the National Council of Juvenile and Family Court Judges.

BE IT FURTHER RESOLVED, That the American Bar Association pledges itself to promoting the implementation of unified children and family court systems as described in Standard 1.1 of the Standards Relating to Court Organization and Administration and enunciated below, recognizing that the manner of administering these courts may differ among states and jurisdictions.

BE IT FURTHER RESOLVED, That the American Bar Association endorses the following clarifications and additions to the components of unified children and family courts:
(1) Intake processes by which families will be initially assisted and expeditiously directed to the appropriate entity in the court system to meet their needs.
(2) Provision and/or integration of comprehensive services and other assistance, as appropriate, for children and families in the courts. Appropriate services can include, but should not be limited to, representation, alternative dispute resolution, guardians ad litem, mental health services, substance abuse counseling, interpreters, and emergency financial and housing assistance. A unified children and family court must have all authority which is supported by its constitutional, statutory and equitable powers to order other government agencies, e.g., housing authorities, mental health agencies, etc., to provide services to families.
(3) Provision and encouragement of "alternative" dispute resolution techniques such as mediation, where appropriate, or where all parties request such an alternative, to resolve family issues. Such techniques are not meant to compromise legal protections and confidentiality and are subject to the development of standards and guidelines.
(4) Development and enforcement of time standards for cases involving the custody or out of home placement of children, e.g., foster care placement, adoption, etc., to prevent prolonged uncertainty that may adversely affect family members, particularly young children. To ensure speedy resolution of all cases in the children and family courts, sufficient resources should be provided to allow judges and social workers to devote adequate time to each case, including sufficient support personnel so that judges can devote their time to adjudicating adversarial issues while trained court staff review uncontested decrees, perform case management and so forth.
(5) An integrated management information system which includes monitoring, tracking, and coordinating all cases in the division to assure either that one judge be assigned to handle all matters pertaining to one family or that all judges presiding over matters affecting one family are made aware of other pending cases affecting that family and shall coordinate to the greatest extent possible all judicial efforts regarding that family.
(6) Assurance that judges and court personnel who work in the children and family court are adequately prepared for and receive on-going training in family court issues including, among other things, domestic violence, child psychology, and the value and methods of alternative dispute resolution.
(7) Adequate oversight of the new court system's performance and outcomes while keeping confidential all information which would tend to identify individual children except if the release of such information is necessary to assure provision of appropriate services for those children.

100 (Ethics and Professional Responsibility Committee; CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association amend Rules 3.6 and 3.8 of the Model Rules of Professional Conduct (1983, as amended) to read as follows:
Rule 3.6 TRIAL PUBLICITY
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

COMMENT
It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such rules.

The Rule sets forth a basic general prohibition against a lawyer's making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.

Paragraph (b) identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).

There are, on the other hand, certain subjects which are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding. Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

Model Code Comparison
Rule 3.6 is similar to DR 7-107, except as follows: First, Rule 3.6 adopts the general criterion of "substantial likelihood of materially prejudicing an adjudicative proceeding" to describe impermissible conduct. Second, Rule 3.6 makes clear that only attorneys who are, or have been involved in a proceeding, or their associates, are subject to the Rule. Third, Rule 3.6 omits the particulars in DR 7-107(b), transforming them instead into an illustrative compilation as part of the Rule's commentary that is intended to give fair notice of the kinds of statements that are generally thought to be more likely than other kinds of statements to pose unacceptable dangers to the fair administration of justice. Whether any statement will have a substantial likelihood of materially prejudicially an adjudicatory proceeding will depend upon the facts of each case. The particulars of DR 7-107(c) are retained in Rule 3.6(b), except DR 7-107(C)(7), which provided that a lawyer may reveal "[a]t the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement." Such revelations may be substantially prejudicial and are frequently the subject of pretrial suppression motions whose success would be undermined by disclosure of the suppressed evidence to the press. Finally, Rule 3.6 authorizes a lawyer to protect a client by making a limited reply to adverse publicity substantially prejudicial to the client.
Rule 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
(f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless:
(1) the prosecutor reasonably believes:
(i) the information sought is not protected from disclosure by any applicable privilege;
(ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution;
(iii) there is no other feasible alternative to obtain the information; and
(2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding;
(g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

COMMENT
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 and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction 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 in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. See also Rule 3.3(d), governing ex parte proceedings, among which grand jury proceedings are included. 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.
Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.
The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. The prosecutor is required to obtain court approval for the issuance of the subpoena after an opportunity for an adversarial hearing is afforded in order to assure an independent determination that the applicable standards are met.
Paragraph (g) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

Model Code Comparison
DR 7-103(A) provided that a "public prosecutor...shall not institute...criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) provided that "[a] public prosecutor...shall make timely disclosure...of the existence of evidence, known to the prosecutor...that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

101A (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association adopts the black letter amendments dated August, 1994 to Chapter Eleven, "Discovery and Procedure Before Trial," of the Second Edition American Bar Association Standards For Criminal Justice.17

101B (CJS)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association urges federal, state, territorial, and local governments to incorporate publicly or privately operated victim-offender mediation/dialogue programs into their criminal justice processes, consistent with the "Victim-Offender Mediation/ Dialogue Program Requirements," dated April 1994; and

BE IT FURTHER RESOLVED, That the American Bar Association encourages federal, state, territorial, and local governments to support continuing research regarding victim-offender mediation/dialogue programs and the dissemination of those research results.

102 (Judicial Adminstration Division)
Recommendation was to adopt amendments to the American Bar Association Standards Relating to Appellate Courts, dated May, 1994. The House amended the proposed standards as follows:

Proposed Section 3.50 (Caseflow Management and Delay Reduction -- General Principle), was amended to read:
An appellate court should supervise and control the preparation and presentation of all appeals coming before it. its management procedures should:
(a) take effect from the time the notice of appeal is filed and continue through final disposition of the appeal;
(b) facilitate early differentiation of cases according to their complexity, common subject matter, common parties, and other relevant criteria;
(c) permit resolution of cases within time standards adopted specially by and for that court. These standards should be developed after analysis and differentiation of the appellate caseload as recommended in Subsection (b) above and after appropriate consideration of those reference models suggested in Sections 3.52-3.55;
(d) conform to the rules of procedure and administrative regulations established for the court system as a whole; and
(e) be established through consultation with affected staff and the bar, stated in writing, and made known to the bar and the public.
Proposed Section 3.52. (Standards of Timely Disposition of Appellate Cases) was amended to read:
(a) Purpose. Time standards should be used as an administrative goal to assist in achieving caseflow management that is efficient, productive, and produces quality results. Cases vary in complexity of legal issues and length of record, and no single fixed time standard is appropriate for each appeal. To measure the efficiency of an appellate court in processing its entire caseload, courts are encouraged to adopt standards which provide that, for any given period, a percentage of appeals complete each appellate function within a certain number of days. Some cases, however, are unique so that it is impracticable to set a goal for a particular time within which they should be resolved. Courts are encouraged to give the reference models set forth in subdivisions (c) and (d) herein and Sections 3.53, 3.54, and 3.55 serious consideration when formulating time standards for their particular court.
(b) Overall Time Standards. Timely disposition of appeals is a cooperative effort among those responsible for the administrative, lawyer, and judicial functions in a court system. See Sections 3.53, 3.54, and 3.55. Time standards should be developed by each court after appropriate involvement of, and consultation with, those whose work they monitor. These goals are not intended to become rules for appellate courts. Rather, their purpose is to establish a framework for periodic reassessment and constant betterment of goals which the court commits itself to achieve. States can adopt a variety of rules and procedures that will be designed to achieve these goals. The function of time standards is to establish a method for assessing whether those rules and procedures are successful.
(c) Reference Model: Time Standards for Supreme Courts.
(i) 50% of all cases should be resolved within 290 days from the time of the petition for certiorari from the intermediate court of appeal or from filing of the notice of appeal.
(ii) 90% of all cases should be resolved within one year of the petition for certiorari from the intermediate court of appeal or from filing of the notice of appeal.
(iii) The remaining 10% should be resolved as expeditiously as possible, given the length of the record, the complexity of the issues, or other unusual circumstances.
(d) Reference Model: Time Standards for Intermediate Courts of Appeal.
(i) 75% of all cases should be resolved within 290 days from filing of the notice of appeal.
(ii) 95% of all cases should be resolved within one year of the filing of the notice of appeal.
(iii) The remaining 5% of the caseload of an intermediate court of appeal should be resolved as expeditiously as possible, given the length of the record, the complexity of the issues, or other unusual circumstances.
(e) The Judicial Administration Division Council shall review this standard no later than January 1, 1997. In making this review, the Council shall determine whether this Standard should be retained, amended, or deleted and make recommendation thereon to the House of Delegates of the American Bar Association.

The Division's recommendation was then approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association adopts the amendments to the Standards Relating to Appellate Courts18 dated May, 1994, as amended, August, 1994.

114C (International Law & Practice Section; cosponsored by Standing Committee on World Order Under Law)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association recommends that the United States Government take an active role in the establishment of an international criminal court that would be based on the following principles:
A. The consensual jurisdiction of the international criminal court should be based on the consent of the state having custody over a person accused of a crime specified in an international convention which (1) adequately defines the crime; (2) has been widely accepted by states representing all of the world's major legal systems; and (3) contains the extradite or prosecute obligation.
B. The mandatory jurisdiction of the international criminal court should be based on a decision by the Security Council issued pursuant to its powers under Chapter VII of the United Nations Charter:
(1) determining that any person or category of persons who have participated in an activity that the Security Council had determined endangers international peace and security and have been accused of having committed a crime which is recognized by the international community as a gross violation of a rule of customary international law widely accepted by states representing all the world's major systems as giving rise to personal responsibility, should be subject to possible prosecution and trial in accordance with the statute of the court; or
(2) transferring to the court for possible prosecution and trial any person who has participated, or is participating, in an activity which the Security Council determined endangers international peace and security and who is accused of having committed a crime under general international law or an international treaty in force, when a state where the accused person is found refuses to try or extradite that person.

114D (International Law & Practice Section; cosponsored by Standing Committee on World Order Under Law)
Approved by voice vote. It reads:

BE IT RESOLVED, That the American Bar Association recommends that the U.S. Government take the following steps to advance the promotion and observance of international human rights:
A. Strongly support the recently created post of High Commissioner for Human Rights.
o The High Commissioner should oversee and direct the work of all U.N. agencies concerned with human rights; should be able to convene sessions of the Commission on Human Rights to address emergencies; should integrate human rights obligations into U.N. peacekeeping and humanitarian operations; and should have the authority to raise human rights concerns in the Security Council.
o The High Commissioner should be based at U.N. headquarters in New York so as to have ready access to the General Assembly and the Security Council and should be provided with adequate staff and resources to carry out the High Commissioner's responsibilities.
o To fulfill its potential, the office of the High Commissioner must have an adequate staff that could be stationed around the world to help victims, provide advisory services, give technical assistance, observe developments, mediate disputes, and express concern about violations.
B. Support in addition, the establishment of special regional Commissioners for the protection of minority rights in regions in which such Commissioners do not exist at present.
C. Help to increase U.N. resources for the promotion of democracy and the
strengthening of the rule of law.
D. Expedite the ratification of important U.N. conventions relating to the protection of human rights and enact legislation that would make it possible to remove most of the reservations to various human rights treaties that have already been ratified, such as the International Covenant on Civil and Political Rights.
E. Strongly support the appointment of women to senior positions in the United Nations system.
F. Support the strengthening of the system of Special Rapporteurs and Working Groups by providing them with sufficient resources and staff to carry out their assignments and allowing them to investigate human rights abuses within their jurisdiction on their own initiative.
G. Work to more appropriately institutionalize the relationship between non-governmental organizations (NGOs) and the U.N. system so as better to reflect and utilize the full potential of NGOs in norm creation and in more systematic scrutiny of state compliance, and to protect NGOs providing humanitarian assistance.

Midyear Meeting 1995

106 (Federal Judicial Improvements Committee; cosponsored by Litigation)
Approved by voice vote. It reads:

Resolved, That the American Bar Association urges the U.S. Judicial Conference to authorize further experimentation with cameras in federal civil proceedings by re-instituting a pilot project to permit photographing, recording and broadcasting of civil proceedings in selected federal courts under guidelines promulgated by the Judicial Conference.

107A (CJS)
Approved by voice vote. It reads:

Resolved, That the American Bar Association opposes Rules 413, 414, and 415 of the Federal Rules of Evidence (concerning the admission of evidence in sexual assault and child molestation cases) as enacted by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994).

107B (CJS)
Approved by voice vote.

Resolved, That the American Bar Association supports amending the Federal Rules of Criminal Procedure to embody the principle that a summons should issue upon indictment, unless good cause is shown at an ex parte proceeding for the issuance of a warrant.

111 (Hispanic National Bar Association; National Asian Pacific American BA, National Bar Association, Commission on Women in the Legal Profession, Commission on Opportunities for Minorities in the Profession, Litigation; cosponsored by JAD, YLD, Standing Committee on Judicial Selection, Tenure and Compensation, and Chicago Council of Lawyers
Amended and approved by voice vote. As approved, it reads:

Resolved, That the American Bar Association reaffirms its longstanding policies and urges the President of the United States to appoint minority lawyers of racial and ethnic diversity to all levels of the federal judiciary, including the United States Supreme Court.

112 (Family Law; cosponsored by Chicago Council of Lawyers)
Approved by voice vote. It reads:

Resolved, That the American Bar Association urges Congress and the various states and territories to enact legislation to provide that no person or entity could deny insurance benefits solely on the basis of the applicant's status as a victim of domestic violence.

113A (Judicial Administration Division; Special Committee on Funding the Justice System; cosponsored by the Section of Tort and Insurance Practice, and the Standing Committees on Judicial Selection, Tenure and Compensation and Professional Discipline)
Approved by voice vote. It reads:

Resolved, That the ABA urges that appointing authorities for judges or judicial officers not use as a criteria, for appointment or reappointment, revenue generation or conviction rate goals.

117A (International Law Practice Section, cosponsored by Chicago Council of Lawyers)
Approved by voice vote. It reads:

Resolved, That the American Bar Association supports efforts by the international community, by national governments, and by non-governmental organizations to encourage the adoption and implementation of effective legal measures and mechanisms to deter corrupt practices in the conduct of international business.

Further Resolved, That the American Bar Association urges the United States government to take steps to support the adoption and implementation by national governments and the international community of effective legal measures and mechanisms that are actively monitored and enforced to deter corrupt practices in the conduct of international business.

Annual Meeting 1995

11-11
By voice vote, the House approved a revised proposal to amend the Bylaws to create a Standing Committee on Substance Abuse. §31.7 was amended to read as follows, and alphabetized accordingly. Substance Abuse. The Standing Committee on Substance Abuse collaborates with other American Bar Association entities; federal, state and local public
private organizations; and state and local bars to address issues of substance abuse. In carrying out its function, the Committee shall:
1. Encourage state and local bar associations to actively develop and foster lawyer and public participation in community anti-drug coalitions as an effective means of addressing substance abuse.
2. Encourage, support, and initiate discussion and examination by ABA entities of exemplary methods that address substance abuse.
3. Develop, after consultation with other appropriate ABA entities, and then implement a communications strategy to inform and educate lawyers and the public on exemplary programs which address substance abuse.
4. Make appropriate recommendations to develop and promote practices and policies that support prevention, education, and treatment of substance abuse.

100 (Committee on Ethics and Professional Responsibility, Litigation)

Resolved, That the American Bar Association amend Rule 4.2 of the Model Rules of Professional Conduct, and the Comment thereto, to read as follows:
RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Comment
[1] This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.
[2] Communications authorized by law also include constitutionally permissible investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings, when there is applicable judicial precedent that either has found the activity permissible under this Rule or has found this Rule inapplicable. However, the Rule imposes ethical restrictions that go beyond those imposed by constitutional provisions.
[3] This Rule also applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.
[4] In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f).
[5] The prohibition on communications with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. See Terminology. Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[6] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 4.3.
Model Code Comparison
This Rule is substantially identical to DR 7-104(A)(1) except for the substitution of the term "person" for "party."

101 (Committee on Ethics and Professional Responsibility, CJS, Litigation; co-sponsored by YLD)
Approved by a standing vote of 183-113.9 It reads:

Resolved, That Rule 3.8 of the Model Rules of Professional Conduct, and the Comment to that rule, be amended by deleting subparagraph (f)(2). Rule 3.8 would then read as follows:
RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
(f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information.
(g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

COMMENT
[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 and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction 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 in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. See also Rule 3.3(d), governing ex parte proceedings, among which grand jury proceedings are included. 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.
[2] Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
[4] Paragraph (f) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.
[5] Paragraph (g) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

104 (Administrative Law & Regulatory Practice, CJS)
Approved by voice vote. It reads:

Resolved, That the American Bar Association recommends that the United States Sentencing Commission adopt and publish internal rules of practice and procedure, including procedures commonly used by other rulemaking agencies to invite and structure public participation, disclose information, and justify promulgated rules.

106 (Committee on the Drug Crisis; co-sponsored by YLD)
Amended and approved:

Resolved, That the American Bar Association urges state, territorial and local bars to join the ABA in developing and encouraging state, territorial and local initiatives aimed at preventing inhalant abuse.

113 (Committee on Professionalism; cosponsored by YLD)
Approved by voice vote. It reads:

Resolved, That the American Bar Association encourages federal, state, territorial and local bar associations and courts to adopt standards of civility, courtesy and conduct as aspirational goals to promote professionalism of lawyers and judges.

116A (Young Lawyers Division; cosponsored by the Special Committee on the Drug Crisis)
Approved by voice vote. It reads:

Resolved, That the American Bar Association encourages state and territorial legislatures, court systems, and bar associations to support and assist in the formation and expansion of diversionary programs, known as Youth Courts, where juvenile participants, under supervision of volunteer attorneys and advisory staff, act as judges, jurors, clerks, bailiffs, and counsel for first time juvenile offenders who are charged with misdemeanors and consent to the program.

116B (Young Lawyers Division)
Approved by voice vote. It reads:

Resolved, That the American Bar Association encourages support for, and implementation of, Resource Guidelines: Improving the Child Abuse and Neglect Court Process, published by the National Council of Juvenile and Family Court Judges, dated August 1995.

116C (Young Lawyers Division)
By a standing vote of 80-70, a revised version of the recommendation was approved. It reads: Resolved, That the American Bar Association:

a) condemns the manifestation by lawyers in the course of their professional activities, by words or conduct, of bias or prejudice against clients, opposing parties and their counsel, other litigants, witnesses, judges and court personnel, jurors and others, based upon race, sex, religion, national origin, disability, age, sexual orientation or socio-economic status, unless such words or conduct are otherwise permissible as legitimate advocacy on behalf of a client or a cause;
b) opposes unlawful discrimination by lawyers in the management or operation of a law practice in hiring, promoting, discharging or otherwise determining the conditions of employment, or accepting or terminating representation of a client;
c) condemns any conduct by lawyers that would threaten, harass, intimidate or denigrate any other person on the basis of the aforementioned categories and characteristics;
d) discourages members from belonging to any organization that practices invidious discrimination on the basis of the aforementioned categories and characteristics;
e) encourages affirmative steps such as continuing education, studies, and conferences to discourage the speech and conduct described above.

120A (CJS; cosponsored by YLD)
Approved by voice vote. It reads:

Resolved, That the American Bar Association supports the reauthorization of the Juvenile Justice and Delinquency Prevention Act, urges the Congress to conduct hearings on the Act, and supports adequate funding to facilitate ongoing implementation of the Act.

120B (CJS)
Approved by voice vote. It reads:

Resolved, That the American Bar Association urges the federal government, states, and territories to adopt procedures ensuring that legislatures consider the impact of proposed legislation, resolutions, or executive orders on correctional management.

Further Resolved, That legislative review and study of proposed resolutions and legislation should include:
1. A review of professional, ethical and legal standards pertaining to the security, discipline, treatment and management of prisoners;
2. An assessment of whether the pending legislation or resolution is consistent with the purposes of sentencing;
3. An assessment of the extent that effective and fair correctional management will be impacted;
4. An analysis of impact on correctional efficiency, workload, resources, and administrative or other costs foreseeable as a result of proposed legislation or resolutions.
Further Resolved, That the American Bar Association endorses the concept that any legislation affecting correctional institutions shall comport with the following ABA principles:
1. That as a general principle, prisoners retain the constitutional rights of free citizens. Exceptions to the foregoing are when restrictions are necessary to assure orderly confinement and interaction, when restrictions are necessary to provide reasonable protection for the rights and physical safety of all members of the prison system and the general public, and when Association policy or standards specifically provide to the contrary.
2. That prisoners are encouraged to engage in productive activities and that there should not be an increase in inmate idleness.
3. That the conditions of confinement and methods of discipline provide incentives to prisoners to encourage proper discipline and should be restrictive only to the extent that they are necessary for safe custody and organized institutional living.
4. That prisoners should be given the opportunity for meaningful job assignment, subject to their mental and physical fitness.

121 (CJS, Public Contract Law)
By voice vote, the House declined to approve the resolution urging adherence to certain principles which recognize the legitimate oversight of legislative bodies and the obligation of prosecutorial agencies to respond to legislative inquiries.

126 (Commission on Domestic Violence; co-sponsored by YLD, IR&R)

Resolved, That the American Bar Association urges Congress, the states and territories, local governments and agencies, and nongovernmental victim services programs to support efforts to pass legislation and secure funding for the development of multidisciplinary, community-based programs to respond to the current epidemic of domestic violence.

Further Resolved, That the American Bar Association recommends that any government or private entity developing multidisciplinary programs in response to domestic violence ensure that such programs contain the following essential elements:
(1) Participation by the various professionals having services to offer victims of domestic violence, including, but not limited to, judges, lawyers, advocates from local and state domestic violence coalitions and programs, physicians, nurses, psychiatrists, psychologists, social workers, victim services professionals, law enforcement personnel, military personnel, members of the business community, and the media;
(2) Coordinated information-sharing among the offices of prosecutors, public defenders, probation officers, courts, victim services programs, relevant government agencies, and law enforcement officials to ensure that all aspects of the justice system are adequately informed about each other's actions in domestic violence cases, so long as the information-sharing process protects the privacy, confidentiality, and safety of the victim and the victim's children;
(3) Multidisciplinary public education programs about domestic violence;
(4) Multidisciplinary domestic violence prevention and intervention through employee assistance programs and programs based in hospitals, schools, medical clinics, social service agencies, and military bases;
(5) Enhanced legal representation for victims of domestic violence and their children and expanded attorney training through pro bono and legal services programs, university legal clinics, and private bar continuing legal education programs;
(6) Data collection regarding numbers of victims, disposition of cases, services utilized to resolve the violence, and victim fatalities, so long as procedures are adopted to protect the privacy, confidentiality, and safety of the victim and the victim's children; and
(7) Policies, procedures, and practices which place primary emphasis on the safety of the victim and the victim's children.

129 ( IR&R; Special Committee on the Drug Crisis; cosponsored by the Standing Committee on the Unmet Legal Needs of Children)
Amended and approved by voice vote. As approved, it reads:

Resolved, That the American Bar Association endorses in principle the U.S. Sentencing Commission proposal transmitted to Congress on May 1, 1995, to amend the federal sentencing guidelines and manual to a) eliminate current differences in sentences based upon drug quantity for offenses involving crack versus powder cocaine, and b) assign greater weight in drug offense sentencing to other factors that may be involved in the offense, such as weapons use, violence, or injury to another person.

130 (Division of ; Standing Committees on Legal Assistance for Military Personnel and Armed Forces Law; cosponsored by CJS and IR&R)
Approved by voice vote. As approved, it reads:

Resolved, That the American Bar Association urges bar admission authorities in the several states and territories to revise, where necessary, existing rules regarding admissions on motion to provide that military lawyers associated with organized legal service programs be specially admitted for the purpose of providing pro bono publico legal services.

MYM 1996

8 (Alameda CBA, Bar Association of San Francisco, Steering Committee on Unmet Legal Needs of Children, Commission on Domestic Violence, Section of Tort and Insurance Practice, Coordinating Committee on Gun Violence; cosponsored by Los Angeles CBA)

Resolved, That the American Bar Association supports the right of the victims of gun violence to seek private redress, and supports legislation to:
1. Amend the Gun Control Act of 1968 to provide a private cause of action, with concurrent state and federal jurisdiction, for those persons sustaining injury or damage as a result of violation of the Act;
2. Adopt and extend state and territorial laws to provide civil claims for relief for those persons sustaining injury or damage as a result of the violation of state, territorial or municipal laws regulating the use, sale, possession, license, ownership, or control of firearms and ammunition.

108 (Domestic Violence Commission, Family Law, NAWJ)
Revised by the proponents and approved by voice vote. As approved, it reads:

Resolved, That the American Bar Association ("the Association") supports educational programs for judges designed to inform and train federal, state, tribal and local judges about the civil, criminal, psychological, evidentiary and procedural issues relating to domestic violence.

Further Resolved, That the Association strongly believes that such education and training is essential to ensure the proper disposition of cases in which domestic violence issues may arise, including, but not limited to:
1. domestic violence;
2. divorce, legal separation and related property settlement issues;
3. child custody, child support and visitation;
4. paternity;
5. parental abduction; and
6. criminal cases involving violence in the home and/or sexual assault or rape.

Further Resolved, That such programs include information about com munity (non-legal, public and private) resources and programs which would facilitate assistance to victims and their children, including, but not limited to: counselling, medical and financial relief and further result in appropriate intervention for those committing acts of domestic violence.

Further Resolved, That the Association urges Congress, the states and territories, and tribal and local governments and agencies to fund such judicial education training programs.

112A (Family Law, YLD)

Resolved, That the American Bar Association adopt the Standards of Practice for Representing a Child in Abuse and Neglect Cases, including preface and commentary, dated November, 1995.

113A (CJS)

Resolved, That the American Bar Association urges that federal asset forfeiture laws be amended to comply with the attached Statement of Principles on the Revision of the Federal Asset Forfeiture Laws, dated November 11, 1995.

113B (CJS)

Resolved, That the American Bar Association recommend that each jurisdiction review its procedures relating to medical release of terminally ill inmates to ensure that: (1) they are fully integrated into the general law of sentencing, particularly with respect to issues such as eligibility for such release; (2) they provide for expedited handling of requests for medical release; and (3) they provide for the collection and dissemination of statistical data relating to the disposition of requests for medical release.

Further Resolved, That the American Bar Association recommend that correctional authorities be encouraged to initiate consideration of medical release in appropriate cases and to make prisoners aware of the procedures for medical release.







August 1996 (AM96)

10A (King County Bar Association; Bar Association of San Francisco, Los Angeles CBA, cosponsored by National Lesbian and Gay Law Association, IR&R)
Approved by voice vote. The resolution reads:
RESOLVED, that the American Bar Association urges state, territorial and local bar associations to study bias in their community against gays and lesbians within the legal profession and the justice system and make appropriate recommendations to eliminate such bias.

100 (Domestic Violence Commission; Family Law Section, NAWL; cosponsored by NAWJ)
Approved by voice vote.4 It reads:
RESOLVED, that the American Bar Association ("the Association") supports the efforts of the U.S. Justice Department, the states and territories, tribes, local governments and agencies, state, territorial and local law enforcement agencies, non-governmental victim service programs, and state, territorial and local bar associations to implement the "full faith and credit' mandate of the Violence Against Women Act of 1994 (VAWA), which directs states and territories to enforce civil and criminal protection orders issued by foreign states, territorial and tribal courts as if the orders had been issued by the enforcing court.
FURTHER RESOLVED, that the Association urges Congress, the states and territories, and tribal and local governments and agencies to fully fund efforts to implement the full faith and credit mandate, including but not limited to:
1) the development of interstate and intrastate computer registries of protection orders;
2) training to educate community members (such as law enforcement officials, judges, lawyers, medical professionals, and advocates) who come in contact with victims and perpetrators of domestic violence about the "full faith and credit" mandate and the enforceability of protection orders issued by foreign states; and
3) the development of state, territorial, tribal and local protocols which would remove barriers to the enforcement of foreign protection orders and would prioritize victim safety.

101A (Armed Forces Law Committee)
The recommendation to amend Article 36 of the Uniform Code of Military Justice to conform court-martial rulemaking procedures to those existing for other Federal courts, was withdrawn by the proponents.

101B (Armed Forces Law Committee; Judge Advocates Association)
Approved as revised. As revised, it reads:
RESOLVED, that the American Bar Association urges that military capital prisoners be provided with the same opportunity for the assistance of counsel in seeking federal post- conviction habeas corpus relief as is now provided by federal law for persons sentenced to death in the civilian courts of this country.

102 (Legal Problems of the Elderly; Senior Lawyers Division Approved by voice vote. It reads:

RESOLVED, that the American Bar Association supports efforts to improve the response of the state courts to elder abuse, adopts the attached "Recommended Guidelines for State Courts Handling Cases Involving Elder Abuse," dated August, 1996, and urges the implementation of these Guidelines by courts at the state, territorial, and local level.

104A (Criminal Justice)

  RESOLVED, That the American Bar Association urges adherence to the following principles when a congressional committee seeks information from a federal prosecutorial agency:

1. Federal prosecutorial agencies should respond in a timely, open and candid manner to requests from congressional committees trying to determine whether the prosecutorial agencies are enforcing laws under their jurisdiction effectively or whether these laws need revision. In most situations, responses should be made through testimony of appropriately designated high ranking agency officials, pertinent statistics, and descriptive and analytical report.

2. Congressional committees and federal prosecutorial agencies should work jointly to establish informal guideline which properly balance the needs for congressional oversight of the executive function and prosecutorial independence from political interference. In formulating such guidelines:

A. Congressional committees should not seek and federal prosecutorial agencies should resist requests for compelled testimony of prosecutorial agency officials or line attorneys regarding discretionary decisions being made in pending cases.

B. Federal prosecutorial agencies should fully respond to requests from congressional committees for information about the handling of adjudicated cases. In the absence of highly unusual circumstances, however, congressional committees should not seek the compelled testimony of line attorneys about adjudicated cases, nor access to work product or other deliberative or privileged information relating to it.

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104B (Criminal Justice)

  RESOLVED, that the American Bar Association supports initiatives that seek to preserve and promote healthy relationships between children and their parents in correctional custody. Such initiatives would consider family accessibility to the facility in making assignment of inmates; would assist parents in correctional custody in developing parenting skills; would allow extended contact visitation by such parents and children; and would support the emotional well-being of children.

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109 (Individual Rights and Responsibilities)

  RESOLVED, that the American Bar Association supports compassionate release of terminally ill prisoners and endorses adoption of administrative and judicial procedures for compassionate release consistent with the "Administrative Model for Compassionate Release Legislation" and the "Judicial Model for Compassionate Release Legislation," each dated April 1996; and

  FURTHER RESOLVED, that the American Bar Association supports alternatives to sentencing for non-violent terminally ill offenders in which the court, upon the consent of the defense and prosecuting attorneys, and upon a finding that the defendant is suffering from a terminal condition, disease, or syndrome and is so debilitated or incapacitated as to create a reasonable probability that he or she is physically incapable of presenting any danger to society, and upon a finding that the furtherance of justice so requires, may accept a plea of guilty to any lesser included offense of any count of the accusatory instrument, to satisfy the entire accusatory instrument and to permit the court to sentence the defendant to a non-incarceratory alternative. In making such a determination, the court must consider factors governing dismissals in the interest of justice.

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113 (Youth Lawyers Division; Hawaii State BA, IR&R; cosponsored by Law Student Division, Maine State BA, Cleveland BA)
Amended and approved by voice vote. The amended resolution reads:
RESOLVED, that the American Bar Association encourages courts to ensure that counseling, treatment, advocacy and other assistance are made available to child victims of abuse and domestic violence through all available means including the imposition of fines, restitution, and court orders;
FURTHER RESOLVED, that the American Bar Association encourages courts, in appropriate circumstances, to require the perpetrators of child abuse and domestic violence to undergo counseling and other treatment;
FURTHER RESOLVED, that in those jurisdictions where courts do not presently have adequate authority to implement the foregoing recommendations, the American Bar Association encourages state and territorial legislatures to enact enabling legislation.

120 (Domestic Violence Commission; cosponsored by NAWJ, NAWL, Family Law Section
Amended and approved by voice vote. As approved, it reads:
RESOLVED, that the American Bar Association:
a) condemns the manifestation by lawyers or judges, by words or conduct of acts which would either constitute domestic violence or approval, in the course of their professional activities, of the use of domestic violence, stalking, or sexual assault under the laws of their jurisdictions;
b) urges judges involved in the administration of courts and lawyers engaged in the management or operation of a law practice or other place of business to adopt workplace protocols, guidelines, and policies to assist employees who are victims of domestic violence in finding help and safety, as well as protocols, guidelines, and policies to protect the safety of employees who may come in contact with batterers during the course of business; and c) encourages affirmative steps such as continuing education, studies, and conferences to educate judges and lawyers about the nature and effects of domestic violence, particularly as to the effect such conduct has on judges or lawyers' abilities to carry out the administration of justice.

February 1997 (MY97)

100 (Criminal Justice, Federal Bar, Administrative Law & Regulatory Practice, IR&R)

  RESOLVED, that the American Bar Association recommends that federal law be amended to model court-martial rulemaking procedures on those procedures used in proposing and amending other Federal court rules of practice, procedure, and evidence by establishing:

(1) a broadly constituted advisory committee, including public membership and including representatives of the bar, the judiciary, and legal scholars, to consider and recommend rules of procedure and evidence at courts-martial;
(2) a method of adopting rules of procedure and evidence at courts-martial which is generally consistent with court rulemaking procedures in Federal civilian courts;
(3) requirements for reporting to Congress a waiting period for rules of procedure and evidence at courts-martial.

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106 (Substance Abuse Committee and Criminal Justice)

Recommendation supporting the National Drug Control Strategy for 1997 was withdrawn.

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107 (Individual Rights & Responsibilities, Litigation, NY State Bar, Bar Assn. Of San Francisco, Bar Assn. Of the City of New York)

  RESOLVED, That the American Bar Association calls upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with the following longstanding American Bar Association policies intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed:

(i) Implementing ABA "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" (adopted Feb. 1989) and Association policies intended to encourage competence of counsel in capital cases (adopted Feb. 1979, Feb. 1988, Feb. 1990, Aug. 1996);
(ii) Preserving, enhancing, and streamlining state and federal courts' authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings (adopted Aug. 1982, Feb. 1990);
(iii) Striving to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendant (adopted Aug. 1988, Aug. 1991); and
(iv) Preventing execution of mentally retarded persons (adopted Feb. 1989) and persons who sere under the age of 18 at the time of their offenses (adopted Aug. 1983).

  FURTHER RESOLVED, That in adopting this recommendation, apart from existing Association policies relating to offenders who are mentally retarded or under the age of 18 at the time of the commission of the offense, the Association takes no position on the death penalty.

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108 (Criminal Justice)

  RESOLVED, That the American Bar Association urges states, territories, localities and the federal government to develop and implement sanctions for violators of probation, parole, and other forms of supervised release in lieu of prison and jail terms for persons whose original conviction was a non-violent felony or a misdemeanor and whose violation is not considered criminal conduct, and encourages judges to sentence appropriate violators to these sanctions; and

  BE IT FURTHER RESOLVED, That jurisdictions should designate intermediate function agencies to assist legislatures in developing a range of sanctions including community service and intermittent confinement, and should provided for adequate means to operate such programs. Judges, attorneys, criminal justice agency representatives, and victims of crime should participate in developing these programs and in monitoring procedures and administrative policies that facilitate their operation.

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114 (Domestic Violence Commission)

Recommends a restatement of the ABA 1978 family violence policy. Lengthy; see p. 3, 2/97 Summary of Action.

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August 1997 (AM97)

100A (Criminal Justice)

  RESOLVED, That the American Bar Association continues to support protection for victims' rights and the adoption of further statutory measures to protect these rights; and

  FURTHER RESOLVED, That the American Bar association urges federal, state, and territorial legislatures considering measures to recognize victims' rights in the criminal justice system to do so consistent with the following principles:

1. The rights of defendants should not be diminished.
2. The discretion of the trial judge to manage court proceedings efficiently and fairly should not be curtailed.
3. The discretion of the prosecutor in the performance of the prosecution function, including full discretion in the charging decision and the plea negotiation process, should not be curtailed;
4. Violation of the rights of victims should not give rise to a new cause of action for damages against any public official or office;
5. Adequate resources should be appropriated to support the effective implementation of crime victims' rights;
6. The class of protection "victims" should be defined; and
7. Each jurisdiction should have the flexibility to develop individualized procedures.

  FURTHER RESOLVED, That in considering provisions to protect crime victims' rights, consideration should be given to the relevant American Bar Association policies, including the Fair Treatment Guidelines for Crime Victims and Witnesses (August 1983), the ABA Standards for Criminal Justice, Chapter on the Prosecution Function, Third Edition (February 1992), and ABA Standards for Criminal Justice, Chapter on Sentencing (February 1993).

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100B (Criminal Justice)

Recommendation urging the adoption of amendments to the Independent Counsel provisions of the Ethics in Government Act, was withdrawn. (See #116A, February 1999)

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100C (Criminal Justice)

  RESOLVED, That the American Bar Association adopts the black letter amendments dated August, 1997 to Chapter Fourteen, "Pleas of Guilty," of the Second Edition American Bar Association Standards for Criminal Justice.

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106B (IR&R, Criminal Justice, Standing Committee on Substance Abuse, Commission on Homelessness and Poverty, Comm. On Mental & Physical Disability Law, Nat. Lesbian and Gay Law Association) Vote: 233-175

  RESOLVED, That in order to further scientifically based public health objectives to reduce HIV infection and other blood-borne diseases, and in support of its long-standing opposition to substance abuse, the American Bar Association supports the removal of legal barriers to the establishment and operation of approved needle exchange programs that include a component of drug counseling and drug treatment referrals.

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February 1998 (MY98)

107A (Criminal Justice)

Recommendation amending Rule 8.4 of the Model Rules of Professional Conduct which would, in the course of representing a client, make it professional misconduct to discriminate on the basis of race, ethnicity or gender when such conduct is intended to abuse or harass, was withdrawn. (See #117, August 1998)

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107(B) (Criminal Justice)

Recommendation commending the efforts of the United States Holocaust Museum to establish a fitting memorial to the victims of the holocaust in Belzec, Poland, was withdrawn.

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118B (Criminal Justice, International Law, Assn. of the Bar of the City of NY, IR&R, World Order Under Law, Litigation)

  RESOLVED, That the American bar Association recommends the establishment of a permanent International Criminal Court (ICC) by multilateral treaty in order to prosecute and punish individuals who commit the most serious crimes under international law; and

  FURTHER RESOLVED, That the American Bar Association recommends that the United States Government continue to play an active role in the process of negotiating and drafting a treaty establishing the ICC, and that the ICC treaty embody the following principles:

A. (1) The ICC's initial subject matter jurisdiction should encompass genocide, war crimes, and crimes against humanity;
(2) The ICC should exercise automatic jurisdiction over these crimes, and no additional declaration of consent by states parties should be required; B. The jurisdiction of the ICC should complement the jurisdiction of national criminal justice systems; C. The United National Security Council, states parties to the ICC treaty, and, subject to appropriate safeguards, the ICC Prosecutor should be permitted to initiate proceedings when a crime within the ICC's jurisdiction appears to have been committed; and D. The rights afforded accused persons and defendants under internationally recognized standards of fairness and due process shall be protected in appropriate provisions of the ICC'' constituent instruments and rules of evidence and procedure.

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August 1998 (AM98)

110 (Criminal Justice, National Association of Women Lawyers etc.)

  RESOLVED, That the American Bar Association urges employers to address work place violence by adopting policies and practices to help them better prevent and manage on-site violence and threats.

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112A (Criminal Justice)

  RESOLVED, That the American Bar Association adopts the black letter standards on technologically-assisted physical surveillance dated August 1998 as an addition to the American Bar Association Standards for Criminal Justice on Electronic Surveillance.

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112B (Criminal Justice, Standing Committee on World Order Under Law)

Recommendation supporting in principle the U.S. Holocaust Museum's efforts to establish a memorial in Belzec, Poland to commemorate its victims and for public education concerning the importance of the rule of law was withdrawn.

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112C (Criminal Justice)

Recommendation urging adoption of amendments to the Independent Counsel provisions of the Ethics in Government Act, was withdrawn.

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112D (Criminal Justice, Standing Committee on Legal Aid and Indigent Defendants)

  RESOLVED, That the American Bar Association recommends that all jurisdictions ensure that defendants are represented by counsel at their initial judicial appearance where bail is set; and

  FURTHER RESOLVED, That each jurisdiction provide adequate resources to support effective implementation of such representation by counsel for indigent defendants.

 

115 (Standing Committee on Legal Aid & Indigent Defendants, Criminal Justice, etc.)

  RESOLVED, That the American Bar Association calls upon each state, territorial and local jurisdiction to adopt minimum standards for the creation and operation of its indigent defense delivery systems based on:

(i) American Bar Association, "ABA Standards for Criminal Justice: Providing Defense Services" (Third Edition (1992));
(ii) American Bar Association, "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" (adopted February 1989); and ABA policies intended to encourage competency of counsel in capital cases (adopted February 1979, February 1988, February 1990, August 1996);
(iii) National Legal Aid and Defender Association, "Guidelines for Negotiating and Awarding Indigent Defense Contracts" (December 1984); and
(iv) National Legal Aid and Defender Association, "Standards for the Administration of Assigned Counsel Systems" (November 1989).

  FURTHER RESOLVED, That the courts and state, territorial and local bar associations are urged to encourage and support the adoption of minimum standards for the creation and operation of indigent defense systems in their jurisdictions.

  FURTHER RESOLVED, That state and territorial commissions, and other government bodies that provide funds for public defense, should require substantial compliance with such minimum standards for the creation and operation of indigent defense systems as a condition for receiving funds.

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117 (Ethics Committee, Criminal Justice, Commission on Opportunities for Minorities in the Profession)

  RESOLVED, That the Comment to Rule 8.4 of the Model Rules of Professional Conduct be amended to add the folllowing new paragraph [2] and to renumber paragraphs [2] and [3] as numbers [3] and [4]:

[2] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. [3] A lawyer may refuse. . . [4] Lawyers holding public office. . .

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February 1999 (MY99)

116A (Criminal Justice, Litigation)

  RESOLVED, That the American Bar Association opposes reauthorization of the Independent Counsel provisions of the Ethics in Government Act (hereinafter called "Independent Counsel Act") in any form.

  FURTHER RESOLVED, That if Congress should determine that there is a need for reauthorization of the Independent Counsel Act, that reauthorization should adhere to appropriate safeguards such as the following principles:

A. All persons subject to the operation of the Independent Counsel Act should receive the same treatment as if the matter were being handled by the Department of Justice.
B. The operation of the Independent Counsel Act should be mandatory in regard to the President, the Vice-President and the Attorney General. Although the Attorney General should be able to seek appointment of an Independent Counsel in regard to any other currently covered person, the decision to seek such an appointment should be left to the discretion of the Attorney General.
C. When the Attorney General requests the appointment of an Independent Counsel, the Attorney General should have the role of recommending to the Special Division of the Court appropriate candidates to serve in that position. Any Independent Counsel should possess the kind of broad experience in criminal justice matters that one would expect of an Attorney General or other high official in the Department of Justice.
D. The decision to seek the appointment of an Independent Counsel should be based on a determination that, given the nature of the alleged criminal activity and the quality of the evidence, the Department of Justice would decide there was reasonable cause to pursue the matter if the subject of the investigation were not a person covered by the provisions of the Independent Counsel Act.
E. There should be no arbitrary time frames imposed upon the Attorney General and there should be no provision requiring the Attorney General to respond to Congressional demands or requests for appointment of an Independent Counsel
F. The Independent counsel should make no public disclosure, other than by formal charge, of the decision to begin or to end an investigation unless the special Division authorizes a public disclosure. The Independent Counsel should be required neither to continue an investigation beyond where a typical criminal investigation would extend in order to prepare and file a report, nor to file any report with the Special Division upon the completion of an investigation. The Independent Counsel should be permitted to file a report with the Special Division when the Independent Counsel believes such a report is necessary to serve the interests of justice. The Special Division should be required to deliver the final report to the Archivist of the United States who will make the report public after 50 years. The Special Division should be permitted to disclose any portion of the report at an earlier time upon a determination that disclosure is required in the interests of justice. In this instance, the Special Division should be permitted to make any portion of a report available to any individual named in the report for the purpose of receiving comment and factual information, all of which shall be included in the report, but only the Special Division should be permitted to disclose the contents of the report or any response to it.

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116B (Criminal Justice)

  RESOLVED, That the American Bar Association adopts the black letter amendments dated February 1999 to Chapter Six, "Special Functions of the Trial Judge," of the Second Edition American Bar Association Standards for Criminal Justice.

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Standard 6-1.2. Community relations [NEW]

(a) The trial judge may promote efforts to educate the community on the operation of the criminal justice system. However, in endeavoring to educate the community, the judge should avoid activity which would give the appearance of impropriety or bias.
(b) The trial judge should not discuss pending or impending cases, and should avoid responding to personal criticism or complaints about particular decisions, other than to correct a factual misrepresentation in the reporting of the ruling.

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August 1999 (AM99)

10A (Various bar associations, Criminal Justice, etc.)

  RESOLVED, That the American Bar Association supports passage of federal, state, local and territorial legislation requiring the systematic collection of and annual reporting to the United States Department of Justice and the appropriate state or territorial attorneys general the following data, by all federal, state, local and territorial law enforcement agencies that engage in traffic stops:

(1) the race and ethnicity but not the identity of each person stopped by law enforcement officials;
(2) the alleged traffic infraction that led to the stop;
(3) whether a search was instituted as a result of the stop;
(4) whether the vehicle, personal effects, driver, passenger and/or passengers were searched;
(5) the legal basis for the search;
(6) whether contraband was discovered in the course of the search;
(7) the nature of any contraband found; and
(8) whether an arrest was made or citation or warning issued as a result of either the stop or the search.

  FURTHER RESOLVED, That the American Bar Association supports the passage of federal, state, local and territorial legislation that requires the Department of Justice as well as state and territorial attorneys general, to undertake a study using the data collected and reported pursuant to the legislation described above and such other information as may be gathered by or reported to them, to determine whether, how and the degree to which race-based profiling or other methods that disproportionately target or affect persons of color are being employed by federal, state, local and territorial law enforcement authorities in conducting traffic stops and searches, and, to the extent such practices are being employed, to identify the most efficient and effective method of ending all such practices.

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112 (Criminal Justice, various other ABA entities)

  RESOLVED, That the American Bar Association encourages governmental entities at all levels to permit government lawyers, including those in judicial administrative positions, to serve in leadership capacities within professional associations and societies.

  FURTHER RESOLVED, That the American Bar Association encourages governmental entities to adopt standards that would authorize government lawyers, including those in judicial administrative positions, to (I) make reasonable use of government law office and library resources and facilities for professional development, continuing education and justice system improvement activities, including pro bono representation, sponsored or conducted by bar associations and similar legal organizations, and (ii utilize reasonable amounts of official time for participation in such activities.

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113A (Criminal Justice)

  RESOLVED, That the American Bar Association opposes the trend toward greater federalization of state, local and territorial crime, and urges Congress to take into account when considering the creation of new federal crimes such principles as the following, derived from the 1998 Report of the Task Force on Federalization of Criminal law, The Federalization of Criminal Law:

1. Creation of new federal crimes is appropriate only where a federal interest is implicated and the state, local or territorial remedy is inadequate to address that interest; and
2. Institutional mechanisms, such as technical analyses, impact statements and sunset provisions of fairly short duration should be considered to assist Congress' analysis of proposed crime legislation and proposed new federal law enforcement findings.

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113B (Criminal Justice)

Recommendation endorsing continued ABA support of the establishment of an international criminal court and urging full participation of the U.S. in the court was withdrawn.

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113C (Criminal Justice)

  RESOLVED, That the American Bar Association recommends the establishment of a national commission to consider federal policies which affect federal, state, local and territorial correctional facilities and make recommendations concerning the following:

1. the efficacy of using the criminal justice system as a tool to accomplish social, economic and public health objectives;
2. existing discretionary administrative and judicial mechanisms for early release and recommended improvements;
3. prevailing federal, state and territorial sentencing policies which preclude consideration by the courts of probation and other alternatives to incarceration, consistent with ABA policy;
4. a variety of proposed approaches to reintegrating offenders in to the community after release from prison;
5. encouragement of licensing and accreditation of correctional facilities to assure that they meet health, safety, and other correctional standards;
6. assessing the social and economic consequences of correctional and sentencing policies that presumptively rely on incarceration when other appropriate sanctions are available for control and punishment of offenders.
FURTHER RESOLVED, That federal state, local and territorial governments are urged to attend to and where appropriate, take steps to work together to implement policies concerning the above-referenced matters, in accordance with American Bar Association policy.

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113D (Criminal Justice) "Miranda" policy

  RESOLVED, That the American Bar Association supports the principle that a person subject to custodial interrogation by law enforcement authorities should be fully advised of:

1. The person's right to remain silent;
2. The fact that anything said during questioning can and may be used against that person in a court of law;
3. The right to consult with an attorney before and during questioning;
4. The right to the appointment of a lawyer prior to any questioning, if the person cannot afford a lawyer; and
5. The right to stop talking at any time during questioning.

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122B (Ethics Committee, etc.)

Recommendation to amend Model Rule 4.2 of the Model Rules of Professional Conduct, Communication with Persons Represented by Counsel, was withdrawn.

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300 (International Law)

Recommendation supporting ratification of the International Criminal Court was withdrawn.

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Midyear 2000 (MY00)

102A (Criminal Justice)

  RESOLVED, That the American Bar Association urges the immediate funding and reauthorization of the Family Unity Demonstration Project, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 13881, et seq.

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102B (Criminal Justice)

  RESOLVED, That the American Bar Association recommends federal, state, and territorial correctional systems review sentencing and correctional policies and practices related to the growing population of elderly prisoners;

  FURTHER RESOLVED, That the federal government, the states, and territories should adopt institutional classification, health, and human services programs that address the special needs of the elderly;

  FURTHER RESOLVED, That the federal government, the states, and territories should adopt release procedures and community based programs with treatment, and supervision for older inmates who are appropriate to be released to the community, consistent with public policy; and

  FURTHER RESOLVED, That bar associations, law schools and other organizations are urged to develop humanitarian residential placements for elderly offenders.

August 2000

109A (Domestic Violence Commission, Family Law, Steering Committee on Unmet Needs of Children, YLD, Tort and Insurance)

RESOLVED, That the American Bar Association encourages:
1. States, territories, and local governments to enact legislation requiring courts to consider the safety risks to victims of domestic violence and their children when drafting orders containing visitation and visitation exchange provisions;
2. Courts to provide or identify, and make use of, locations in which supervised visitation and visitation exchanges can safely occur;
3. Courts to inquire about domestic violence when addressing visitation issues in child custody matters, and in every case in which the court determines there is a risk to the safety of a parent or child, to craft orders of visitation that create safe visitation and safe visitation exchanges for victims and their children, including provisions that are explicit as to time, date, and place;
4. Attorneys to advocate for safe visitation and visitation exchanges.

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109B (Domestic Violence Commission, Dispute Resolution, Family Law, Steering Committee on Unmet Legal Needs of Children, Tort and Insurance, YLD, Litigation)

RESOLVED, That the American Bar Association recommends that court-mandated mediation include an opt-out prerogative in any action in which one party has perpetrated domestic violence upon the other party.

115 (CJS, NLADA, SCLAID)
Amended and approved:

RESOLVED, That the American Bar Association urges federal, state, local and territorial jurisdictions adhere to the following Principles concerning Biological Evidence collected in conjunction with the investigation of a criminal case:
1. All biological evidence should be preserved.
2. All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and convicted persons may seek appropriate relief notwithstanding any other provision of law.
3. All necessary funding to accomplish these principles should be provided.
4. Appropriate scientific and privacy standards should be developed to guide the preservation of biological evidence.

111 (YLD, Steering Committee on Unmet Legal Needs of Children)

RESOLVED, That the American Bar Association encourages state and territorial legislatures to include within domestic violence statutes the same remedies, protections, and services to adolescents that are available to adults, including domestic violence restraining orders; access to shelters and safe houses; support groups, education, and counseling; other programs to aid in the prevention and elimination of violence; and access to legal assistance for adolescent victims; and

FURTHER RESOLVED, That the American Bar Association urges educational authorities, law enforcement officials, juvenile courts, and other government agencies to support more effectively adolescent dating awareness programs, domestic violence awareness programs, adolescent victim services, and teen offender intervention programs.

Midyear 2001

103A (Criminal Justice)

RESOLVED, That the American Bar Association adopts the revisions to the Second Edition of the ABA Criminal Justice Standards on Electronic Surveillance dated February 2001.

103B (Criminal Justice, Family Law, Steering Committee on Unmet Legal Needs of Children, Commission on Mental and Physical Disability, Young Lawyers Division
Amended and approved, as follows:

RESOLVED, that the American Bar Association supports the following principles concerning school discipline:
1) schools should have strong policies against gun possession and be safe places for students to learn and develop;
2) in cases involving alleged student misbehavior, school officials should exercise sound discretion that is consistent with principles of due process and considers the individual student and the particular circumstances of misconduct; and
3) alternatives to expulsion or referral for prosecution should be developed that will improve student behavior and school climate without making schools dangerous; and

FURTHER RESOLVED, that the ABA opposes, in principle, "zero tolerance" policies that have a discriminatory effect, or mandate either expulsion or referral of students to juvenile or criminal court, without regard to the circumstances or nature of the offense or the student's history.

103C (Criminal Justice)

RESOLVED, That the Congress should enact legislation to require the President to:
1. Report to the Congress within thirty days after receiving notice from the International Criminal Court Prosecutor
2. Take all reasonable steps to assure that the United States retains jurisdiction to investigate and, if necessary, prosecute the alleged act; and
3. Report promptly to Congress on subsequent actions by the International Criminal Court with respect to the alleged act.

105C (International Law, Criminal Justice, IR&R, Assn. Bar of City of New York)

RESOLVED, That the American Bar Association recommends that the United States Government accede to the Rome Statute of the International Criminal Court.

April 2001
Board of Governors

Criminal Justice

BE IT RESOLVED, That the American Bar Association urges the Congress to fully fund the Criminal Justice Act (the Act), including sufficient monies to permit the United States Judicial Conference to implement a $113 panel attorney hourly rate for private attorneys representing indigent defendants, plus any annual federal pay adjustments determined necessary by the Judicial Conference pursuant to the Act to ensure that attorneys receive fair compensation in accordance with prevailing standards.

August 2001

10A (Bar Association of D.C.; NACDL; IR&R)

RESOLVED, That the American Bar Association recommends that a defendant in a capital case tried by court-martial under the Uniform Code of Military Justice be given the right to trial before a court-martial panel containing twelve members.

10B (Los Angeles County Bar Association)

RESOLVED, That the American Bar Association opposes federal, state or territorial legislation to create special legal immunity for the firearms industry from civil tort liability.

101A (Criminal Justice; Judicial Division)

RESOLVED, That the American Bar Association adopts the black letter of Standard 2.77 Procedures in Drug Treatment Courts dated August 2001 as an amendment to the Standards Relating to Trial Courts approved by the House of Delegates in February 1976 and amended in February 1992.

(Note: Black letter Standard 2.77 is set forth on pages 46-48 of Summary of Action for August 2001.)

115 (Section of Litigation; CJS; Tort and Insurance Practice; Senior Lawyers)

RESOLVED, THAT the American Bar Association opposes the practice of various federal courts of appeal in prohibiting citation to or reliance upon their unpublished opinions as contrary to the best interests of the public and the legal profession.

FURTHER RESOLVED, THAT the American Bar Association urges the federal courts of appeals uniformly to:
(1) Take all necessary steps to make their unpublished decisions available through print or electronic publications, publicly accessible media sites, CD-ROMs, and/or Internet Websites; and
(2) Permit citation to relevant unpublished opinions.

117 (Coalition for Justice; Committee on State Justice Initiatives)
Revised as follows, and adopted:

RESOLVED, That the American Bar Association supports:
(1) the use of the term "problem-solving courts" to refer to specialized initiatives such as drug courts, community courts and mental health courts, as well as programs such as unified family courts;
(2) the continued development of problem-solving courts to improve court processes and court outcomes for litigants, victims and communities;
(3) the consideration of the use of the principles and methods employed by problem-solving courts in the daily administration of justice while preserving the rule of law and traditional due process protections and adherence to the Model Code of Judicial Conduct.

FURTHER RESOLVED, that the ABA encourages law schools, state, local and territorial bar associations, and other organizations to engage in education and training about the principles and methods employed by problem-solving courts.

Midyear 2002

8C (Bar Association of the District of Columbia, etc.)
Approved as revised

RESOLVED, That the American Bar Association urges that, with respect to the November 13, 2001, Military Order Regarding "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism," or any similar military order that is issued, the President and Congress should assure that the law and regulations governing any tribunal will:
1. Not be applicable to United States citizens, lawful resident aliens, and other persons lawfully present in the United States;
2. Not be applicable to persons apprehended or to be tried in the United States, except for persons subject to the settled and traditional law of war who engage in conduct alleged to be in violation of such law of war;
3. Not be applicable to cases in which violations of federal, state or territorial laws, as opposed to violations of such law of war, are alleged;
4. Not permit indefinite pretrial detention of persons subject to the order;
5. Require that its procedures for trials and appeals be governed by the Uniform Code of Military Justice except Article 32 and provide the rights afforded in courts-martial thereunder, including but not limited to, provision for certiorari review by the Supreme Court of the United States (in addition to the right to petition for a writ of habeas corpus), the presumption of innocence, proof beyond a reasonable doubt, and unanimous verdicts in capital cases; and
6. Require compliance with Articles 14 and 15(1) of the International Covenant on Civil and Political Rights, including, but not limited to, provisions regarding prompt notice of charges, representation by counsel of choice, adequate time and facilities to prepare the defense, confrontation and examination of witnesses, assistance of an interpreter, the privilege against self-incrimination, the prohibition of ex post facto application of law, and an independent and impartial tribunal, with the proceedings open to the public and press or, when proceedings may be validly closed to the public and press, trial observers, if available, who have appropriate security clearances.

FURTHER RESOLVED, That the American Bar Association urges the Executive and Legislative branches, in establishing and implementing procedures and selecting venues for trial by military tribunals, to give full consideration to the impact of its choices as precedents in (a) the prosecution of U.S. citizens in other nations and (b) the use of international legal norms in shaping other nations' responses to future acts of terrorism.

101A (Criminal Justice)
Standards revised, and resolution approved

RESOLVED, That the American Bar Association adopts the revisions to the Second Edition, Revised ABA Criminal Justice Standards on Pretrial Release, dated February 2002.

101B (Criminal Justice)
Approved as submitted

RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to:
1. Enact legislation and take other action to expand voluntary and productive work for jail and prison inmates; and
2. Provide job training and job placement assistance in conjunction with community-based correctional programs.

FURTHER RESOLVED, That the Association opposes legislative efforts that would limit or restrict specific work opportunities for inmates without offering new authority to create additional jobs for them; and

FURTHER RESOLVED, That the Association urges federal, state, territorial and local governments to implement the following principles in conjunction with correctional work programs:
1. The programs should be structured in a manner that minimizes disruption to the interests of private industry and labor unions;
2. Authority should be granted to prison industries to provide products and services for commercial markets, including products and services that would otherwise be made by foreign labor;
3. As many inmates as possible should be employed in these programs, taking account of the unique circumstances of correctional work settings and public health and safety concerns;
4. Inmates should be fairly compensated;
5. Clear principles of legal responsibility and accountability for correctional work activities are to be a part of agreements between governments and private entities engaged by these governments to operate correctional work programs.

101C (Criminal Justice)
Approved as submitted

RESOLVED, That the American Bar Association urges the United States government to seek to protect and uphold the attorney/client relationship, including the attorney/client privilege, in dealing with international money laundering.

101D (Criminal Justice, Litigation)
Approved as submitted

RESOLVED, That the American Bar Association supports the following principles derived from the 2001 Report of the Task Force on Youth in the Criminal System of the Criminal Justice Section, Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners concerning youth in the criminal justice system:
1. youth are developmentally different from adults and these differences should be taken into account;
2. pretrial release or detention decisions regarding youth awaiting trial should reflect their special characteristics;
3. if detained or incarcerated, youth should be housed in institutions or facilities separate from adult institutions or facilities at least until they reach the age of eighteen;
4. youth detained or incarcerated should be provided programs which address their educational, treatment, health, mental, and vocational needs;
5. youth should not be permitted to waive the right to counsel without consultation with a lawyer and without a full inquiry into the youth's comprehension of the right and their capacity to make the choice intelligently, voluntarily and understandingly. Stand-by counsel should be appointed if the right to counsel is voluntarily waived;
6. judge should consider the individual characteristics of the youth during sentencing; and
7. collateral consequences normally attendant to he justice process should not necessarily apply to all youth arrested for crimes committed before age eighteen; and

FURTHER RESOLVED, That the ABA opposes, in principle, the trend toward processing more and younger youth as adults in the criminal justice system and urges policymakers at all levels to take the previously mentioned principles into account in developing and implementing policies involving youth under the age of eighteen.

104 (Delegate from the District of Columbia Bar)
Approved

RESOLVED, That the American Bar Association, pursuant to its dedication to the rule of law, supports the call of the President of the United States to bring to justice the perpetrators of global terrorism and those who harbor the terrorists or give them aid.

106F (NCCUSL)

The resolution to approve the Uniform Interstate Enforcement of Domestic-Violence Protection Order Act as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein was withdrawn.

106G (NCCUSL)
Approved as submitted

RESOLVED, That the American Bar Association approve the Uniform Mediation Act promulgated by the National Conference of Commissioners on Uniform state Laws in 2001 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein.

107 (SCLAID, CJS, etc.)
Revised and approved.

RESOLVED, That the American Bar Association adopts or reaffirms THE TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM, dated February 2002, which constitute the fundamental criteria to be met for a public defense delivery system to deliver effective and efficient, high quality, ethical, conflict-free representation to accused persons who cannot afford to hire an attorney.

FURTHER RESOLVED, That the American Bar Association recommends that each jurisdiction use THE TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM, dated February 2002, to assess promptly the needs of its public defense delivery system and clearly communicate those needs to policy makers.

[Summary: "Black letter" only]
1. The public defense function, including the selection, funding, and payment of defense counsel, is independent.
2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment, as soon as feasible after clients' arrest, detention, or request for counsel.
4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
5. Defense counsel's workload is controlled to permit the rendering of quality representation.
6. Defense counsel's ability, training, and experience match the complexity of the case.
7. The same attorney continuously represents the client until completion of the case.
8. There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.
9. Defense counsel is provided with and required to attend continuing legal education.
10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

110 (Council on Racial and Ethnic Justice)
Revised and approved

RESOLVED, That in recognition of the fact that the United States is a diverse and multicultural society, the American Bar Association urges the federal government and the states, territories and possessions to commit sufficient resources to all courts and administrative agencies to enable them to provide qualified live, in-person language interpreters to ensure that all parties and witnesses may fully and fairly participate in all proceedings, and

FURTHER RESOLVED, That courts and agencies should provide live in-person interpreters in all cases, except that in brief, preliminary proceedings or in other matters involving an urgent need for the protection of life and safety, the imminent removal of persons or evidence from the jurisdictions, or in other cases involving similar emergent circumstances when an in-person interpreter is not available, a qualified interpreter who is employed by a telecommunications or other technology-based interpretation service may be provided.

112 (IR&R, Commission on Mental and Physical Disability Law, NCALJ)
Approved as submitted

RESOLVED, That the American Bar Association urges all federal, state, territorial, and municipal courts to help ensure equal access to justice by making courthouses and court proceedings accessible to individuals with disabilities, including lawyers, judges, jurors, litigants, court employees, witnesses, and observers.

FURTHER RESOLVED, That the American Bar Association recommends that the appropriate judicial or administrative official in each courthouse designate a disability accommodations coordinator to develop procedures for receiving requests for accommodations from individuals with disabilities and for responding with reasonable accommodations that meet the needs of the individual, including, where appropriate, removal of architectural barriers, modification of rules and practices, and provision of auxiliary aids and services.

301 (Stdg Comm. on Federal Judicial Improvements, Stdg Comm. on Judicial Independence; Coalition for Justice)
Approved

Urges the Administration and Congress to maintain federal support for the State Justice Institute and to adequately fund it.

401 (Commission on Evaluation of the Rules of Professional Conduct)
Approved as amended with the exception of Rule 5.5 and Rule 8.5

RESOLVED, That the American Bar Association resumes consideration of the debate on the Model Rules of Professional Conduct and adopts the proposed amendments as submitted in February 2002.

Annual 2002

103 (Seth Rosner, Delegate-at-Large)

RESOLVED, That the American Bar Association adopt the following amendment to Rule 1.6(b)(2) of the Model Rules of Professional Conduct and the Commentary thereto, as follows:

(b)A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(2) to prevent the client from committing a crime that is reasonably certain to result in substantial injury to the financial interests fo rproperty of another and in furtherance of which the client has used the lawyer's services:

(Commentary not copied here)

104A (YLD)

RESOLVED, that the American Bar Association encourages state legislatures to enact legislation prohibiting landlords from terminating residential leases of tenants of multi-family dwellings who are victims of domestic violence solely as a result of the occurrence or recurrence of domestic violence, provided that the tenant has sought assistance from law enforcement, the judicial system, and/or a social services agency in an effort to prevent the occurrence or recurrence of domestic violence.

104B (YLD, General Practice, Solo, and Small Firm; Dispute Resolution, State and Government Law)

RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to enact and fully implement legislation that promotes tolerance and anti-bias instruction, multicultural awareness training, hate crime/violence prevention education, and anti- bullying/harassment programs for children, parents, teachers, and school administrators;

FURTHER RESOLVED, That the American Bar Association urges public education agencies, school boards, juvenile courts, and other community agencies to adopt policies that:
a) urge juvenile courts to create and utilize appropriate diversionary programs or, where necessary, alternative dispositions that educate children on the negative impact of hate and prejudice-motivated behavior;
b) consider the unique circumstances of each hate crime or incidence of violence committed by and against children when responding to any such reported act;
c) provide for national, state, local, college/university, and elementary/secondary school data collection on juvenile hate crimes, and reported acts of harassment, bullying, or other violence committed by and against children; and
d) encourage government-funded agencies responsible for residential care settings for children to implement and enforce nondiscrimination polices for children in their care and promptly investigate and resolve incidents of harassment, violence or other mistreatment directed toward those children.

FURTHER RESOLVED, That the American Bar Association urges the organized bar, and individual lawyers, to facilitate tolerance and anti-bias education in school and community settings and to promote programs that respond to hate crimes and prejudice-motivated acts by children.

107 (Criminal Justice)

RESOLVED, That the American Bar Association urges federal, state, territorial and local governments, in responding to budget constraints, to undertake a comprehensive review of their pretrial detention, sentencing and correctional systems, to identify modifications that can be made in those systems to improve their cost-effectiveness, in conformance with public safety needs and constitutional requirements; and

FURTHER RESOLVED, That the American Bar Association urges these jurisdictions to ensure the availability of alternatives to incarceration for use in appropriate cases before considering construction of new or expanded public or private prisons or jails; and

FURTHER RESOLVED, That the American Bar Association adopts the "Blueprint for Cost-Effective Pretrial Detention, Sentencing and Corrections Systems", dated August 2002, and commends to federal, state, territorial and local governments the provisions of the Blueprint as minimum steps to eliminate unnecessary correctional expenditures, enhance cost-effectiveness, and promote justice.

BLUEPRINT FOR COST-EFFECTIVE PRETRIAL DETENTION, SENTENCING, AND CORRECTIONS SYSTEMS
(August 2002)

Fiscal Accountability
1. Each state and the federal government should require the preparation of correctional/fiscal impact statements and their consideration by legislators and the governor or President before legislation is enacted that would increase the number of persons subject to a particular criminal sanction, or increase the potential sentence length for any criminal offense.
2. Each state and the federal government should make laws increasing the number of persons who will be incarcerated or the length of their incarceration subject to a sunset provision when the money to fund the projected increase in the prison or jail population is not appropriated.

Sentencing and Community Corrections
3. Each state and the federal government should adopt and implement a comprehensive community corrections act that provides the structure and funding for the sanctioning of nonviolent offenders within their communities.
4. Community corrections systems should be structured to avoid unnecessary supervision and incarceration, in part through the expanded use of means-based fines.
5. Each state and the federal government should review their sentencing laws, and sentencing or parole guidelines, to accomplish the following objectives:
(a) to provide that a community-based sanction is the presumptively appropriate penalty for persons who do not present a substantial danger to the community; and (b) to ensure that the populations subject to the jurisdiction's prison, jail, or community-sanctioning systems do not exceed each system's rated capacity.
6. Each state and the federal government should review the length of sentences prescribed by law, and sentencing and parole guidelines, to ensure that they accurately reflect current funding priorities, as well as research findings that question the utility of long sentences, whether incarcerative or community-based, for certain kinds of crimes.
7. Each state and the federal government should repeal mandatory sentencing laws that unduly limit a judge's discretion to individualize sentences, so that the sentence in each case fairly reflects the gravity of the offense and the degree of culpability of the offender.
8. Each state and the federal government should review and revise sentencing laws and court procedures to provide for appropriate community-based responses to drug offenses, including treatment, in lieu of incarceration.
9. State and federal prosecutors should regularly examine their policies concerning charging, plea-bargaining, and sentence recommendations, in order to avoid overcharging, and to make greater use of community-based sanctions.

Sentence Modifications
10. Each state and the federal government should structure its sentencing system to permit a graduated response, when appropriate, to violations of the conditions of parole or other community release. The sentencing system should provide that a community-based sanction is the presumptively appropriate penalty for persons who do not present a substantial danger to the community.
11. Each state and the federal government should establish a mechanism to apply the above-described sentencing reforms retroactively, where appropriate, to currently incarcerated inmates.
12. Each state and the federal government should adopt and fully implement mechanisms for the expeditious consideration of early release for prisoners who are terminally ill or physically incapacitated, and each jurisdiction should assess the desirability of applying such mechanisms to elderly or other prisoners in specified circumstances.

Reentry and the Reduction of Recidivism
13. Each state and the federal government should adopt a comprehensive plan to reduce return rates to prison and jail, that includes the development of reentry plans, procedures, and services to facilitate released inmates' reintegration into the community, and relief from legal obstacles that impede reintegration.
14. Local, state, and federal governments should implement and fully fund programs within prisons and jails, and within community-based sanctioning programs, to provide educational opportunities, vocational and job training, mental health and substance abuse treatment, counseling, and other programs designed to reduce recidivism.

Pretrial Detention
15. Local governments, working in partnership with the state government, should adopt, expand, and refine pretrial services programs to reduce unnecessary detention, to save jail space for persons who need to be incarcerated.

Correctional Operations and Facilities
16. Local, state, and federal governments should adopt performance standards for prisons, jails, and community-sanctioning programs, to ensure that the effectiveness of correctional practices and programs can be assessed and improved.
17. Local, state, and federal governments should utilize information, management, and evaluation systems that regularly identify and rectify inefficiencies in judicial case management systems and correctional processes that unduly prolong incarceration in correctional facilities, that result in the inappropriate designation of offenders to high-security institutions, or otherwise increase costs.
18. Correctional officials in each local, state, and federal government should be granted and exercise the authority to designate a halfway house or other community residential facility as the site of an inmate's incarceration when such a placement comports with public safety.
19. Local, state, and federal correctional officials should establish linkages with universities, colleges, and community colleges through which research and service learning can be better utilized to reduce correctional costs.
20. The decision to close correctional facilities for budgetary reasons should be subject to the following requirements: (a) the selection of the facilities to be closed should be informed by and based on input from correctional officials regarding which facility (or facilities) it would be most advisable to close from a fiscal and correctional-management perspective; (b) the closing of a correctional facility should not result in the transfer of inmates to any facility already operating at or above its rated capacity; and (c) the selection of the facilities to be closed should take into account the desirability of permitting appropriate visitation by family members, in order to facilitate inmates' eventual reintegration into the community.

108A (Legal Problems of the Elderly, Mental and Physical Disability Law, Senior Lawyers)

RESOLVED, THAT the American Bar Association supports efforts to improve the response of federal, state, territorial and local governments and of the criminal and civil justice systems to elder abuse, neglect and exploitation (hereinafter "elder abuse").

RESOLVED, FURTHER THAT in order to address and reduce the incidence of elder abuse, the American Bar Association urges implementation at the federal, state, territorial and local levels of the following actions based upon recommendations adopted by the National Policy Summit on Elder Abuse in December 2001:
(1) Create a nationwide structure for raising public awareness; supporting research, training and technical assistance; funding critical services; and coordinating local, territorial, state, and national resources;
(2) Develop and implement specialized training about elder abuse for all components of the justice system;
(3) Establish federal leadership to ensure that adult protective services and legal and other services are of sufficient quality to protect and serve victims of elder abuse;
(4) Create broad-based, multidisciplinary task forces or coalitions in each state to examine and develop systemic approaches to elder abuse interventions;
(5) Develop, fund, and implement a multidisciplinary research agenda to sustain, advance, and assess professional training and practice on elder abuse;
(6) Maximize and expand resources for preventing and responding to elder abuse;
(7) Develop adequate tools and services to enable capacity assessments and surrogate decision- making for victims of elder abuse; (8) Ensure that legal and other services are available to meet the immediate and crisis needs of victims.

115B (Immigration)

RESOLVED, That the American Bar Association opposes the incommunicado detention of foreign nationals in undisclosed locations by the Immigration and Naturalization Service (INS) and urges protection of the constitutional and statutory rights of immigration detainees by:

1. Disclosing the names, detention facilities and charges against detainees and ensuring their immediate access to attorneys and family members;
2. Promptly charging detainees and releasing detainees when charges are not brought or removal orders are not effectuated within a constitutionally permissible time period;
3. Providing prompt custody hearings before immigration judges with meaningful administrative review and judicial oversight;
4. Holding public removal hearings except when required to protect the individual's safety or welfare or when a judge finds closure necessary to protect national security; and
5. Promulgating into regulation the four INS detention standards relating to access to counsel and legal information, and permitting independent organizations to visit the detention facilities and meet privately with detainees to monitor compliance.

117A (IR&R, Assn. of the Bar of the City of New York)

RESOLVED, that the American Bar Association urges federal, state, territorial, and local governments to enact legislation, promulgate regulations, or take other necessary action to ensure that an unmarried surviving partner who shares a mutual, interdependent, committed relationship with a victim of terrorism or other crime can qualify for crime victim compensation and assistance funds provided by that government to eligible spouses.

Midyear 2003

103A (CJS, IR&R)

Withdrawn-resolution to adopt the black letter ABA Criminal Justice Standards on Collateral Sanctions and Disqualification of Convicted Persons, dated February 2003, as an addition to the Third Edition of the Criminal Justice Standards, which address issues related to legal disabilities that flow from a criminal conviction over and above the sentence imposed by the court.

103B (CJS)

Urges federal, state, territorial and local governments to evaluate their existing laws, practices and procedures and to develop criteria relating to the consideration of prisoner requests for reduction or modification of sentence based on extraordinary and compelling circumstances arising after sentencing, to ensure their timely and effective operation.

RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to evaluate their existing laws, a well as their practices and procedures, relating to the consideration of prisoner requests for reduction or modification of sentence based on extraordinary and compelling circumstances arising after sentencing, to ensure their timely and effective operation.

RESOLVED FURTHER, That the American Bar Association urges these jurisdictions to develop criteria for reducing or modifying a term of imprisonment in extraordinary and compelling circumstances, provided that a prisoner does not present a substantial danger to the community. Rehabilitation alone shall not be considered an extraordinary and compelling circumstance.

FURTHER RESOLVED, That the American Bar Association urges these jurisdictions to develop and implement procedures to assist prisoners who by reason of mental or physical disability are unable on their own to advocate for, or seek review of adverse decisions on, requests for sentence reduction.

104 (Task Force on Gatekeeper Regulation and the Profession)

RESOLVED, That the American Bar Association supports the enactment of reasonable and balanced initiatives designed to detect and prevent domestic and international money laundering and terrorist financing.

FURTHER RESOLVED, That any efforts to establish and implement international and United States policies to combat domestic and international money laundering and terrorist financing should be consistent with the following principles:
(1) lawyers play a critical and independent role in the administration of justice and in ensuring lawful compliance by persons and entities involved in commercial and financial activities;
(2) the judiciary and the organized bar are responsible for establishing ethical rules governing the activities of lawyers and for ensuring that the profession adheres to the highest standards of professional and lawful conduct; and
(3) thee is a critical need for confidentiality in client communications with lawyers to ensure the independence of the bar, protect the lawyer-client relationship, and support the proper functioning of the legal system;

FURTHER RESOLVED, That the American Bar Association:
(1) opposes any law or regulation that, while taking action to combat money laundering or terrorist financing, would compel lawyers to disclose confidential information to government officials or otherwise compromise the lawyer-client relationship or the independence of the bar; and
(2) will continue to review the Model Rules of Professional Responsibility and evaluate whether the rules permitting, in appropriate circumstances, disclosure of confidential information should be modified to permit disclosure of information demonstrating the clear intent of a client to commit criminal acts such as money laundering; and
(3) urges bar associations and law schools to undertake education efforts to ensure that lawyers are informed regarding the scope of money laundering laws and the anti-money laundering requirements that apply to lawyers to safeguard the profession from being used to facilitate money laundering or terrorist financing activity.

106A (Commission on Domestic Violence…)

Withdrawn--Recommendation that law schools, through their deans, professors, clinicians, curriculum directors and students, incorporate education about domestic violence within their substantive, clinical, and specialty law curricula and law school activities

106B (Commission on Domestic Violence, …)
Approves resolution to support federal, state, local and territorial legislation that prohibits discrimination in housing against victims of domestic violence and urges all relevant federal, state, local and territorial administrative agencies to adopt and vigorously enforce regulations to combat such discrimination.

RESOLVED, That the American Bar Association supports federal, state, local and territorial legislation to prohibit discrimination in housing against victims of domestic violence;

FURTHER RESOLVED, That the American Bar Association urges all relevant federal, state, local and territorial administrative agencies to adopt and vigorously enforce regulations to combat such discrimination.

107 (SCLAID, CJS, etc.)
Adopts revisions to the black letter ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, dated February 2003 and recommends adoption of the Guidelines by death penalty jurisdictions. See:

RESOLVED, That the American Bar Association adopts the black letter ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, dated February 2003; and

FURTHER RESOLVED, That the American Bar Association recommends adoption by death penalty jurisdictions of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, dated February 2003.

NOTE: To obtain an on-line copy of the approved guidelines, see http://www.abanet.org/legalservices/publications/sclaid.html or http://www.abanet.org/deathpenalty/DPGuidelines42003.pdf

109 (CJS, etc.)
Approved as revised

RESOLVED, That the American Bar Association urges that U.S. citizens and residents who are detained within the United States based on their designation as "enemy combatants" be afforded the opportunity for meaningful judicial review of their status, under a standard according such deference to the designation as the reviewing court determines to be appropriate to accommodate the needs of the detainees and the requirements of national security; and

FURTHER RESOLVED, That the American Bar Association urges that U.S. citizens and residents who are detained within the United States based on their designation as "enemy combatants" not be denied access to counsel in connection with the opportunity for such review, subject to appropriate conditions as may be set by the court to accommodate the needs of the detainees and the requirements of national security; and

FURTHER RESOLVED, That the American Bar Association urges Congress, in coordination with the Executive Branch, to establish clear standards and procedures governing the designation and treatment of U.S. citizens, residents, or others who are detained within the United States as "enemy combatants;" and

FURTHER RESOLVED, That the American Bar Association urges that, in setting and executing national policy regarding detention of "enemy combatants," Congress and the Executive Branch should consider how the policy adopted by the United States may affect the response of other nations to future acts of terrorism.

112 (CJS, etc.)
Approves a resolution supporting the United States Constitution as the supreme law of the land and reaffirms its commitment to the doctrine of "judicial review" as a fundamental principle for a nation governed by the rule of law.

RESOLVED, That in recognition and commemoration of the bicentennial anniversary of the historic seminal decision by the United States Supreme Court in the case of Marbury v. Madison (February 24, 1803), the American Bar Association rededicates itself in support of the United States Constitution as the supreme law of the land and reaffirms its commitment to the doctrine of "judicial review" as a fundamental principle for a nation governed by the rule of law.

113C (CJS, etc.)
Approves the Uniform Child Witness Testimony by Alternative Methods Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2002 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein.

RESOLVED, That the American Bar Association approves the Uniform Child Witness Testimony by Alterntive Methods Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2002 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein.

113E (NCCUSL, etc.) Approves the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2000 and amended in 2002 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein.

RESOLVED, That the American Bar Association approves the Uniform Interstate Enforcement of Domestic-Violence Protection Orders Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2000 and amended in 2002 as an appropriate Act for those States desiring to adopt the specific substantive law suggested therein.

116 (Commission on Homelessness and Poverty, etc.)
Approved as revised standards to assist jurisdictions in developing a homeless court program to address the legal problems of the homeless participants as well as linking them with appropriate services and treatment programs.

RESOLVED, That the American Bar Association supports the development of a comprehensive, systemic approach to addressing the needs of homeless misdemeanant defendants through multidisciplinary strategies that include coordination among the criminal justice, health, social service and education systems, and the community.

FURTHER RESOLVED, That the American Bar Association urges state, local and territorial courts to adopt Homeless Court Programs as treatment-oriented diversionary proceedings that may result in the dismissal of misdemeanor offenses upon completion of shelter/service agency activities, as a means to foster the movement of people experiencing homelessness from the streets through a shelter program to self-sufficiency.

FURTHER RESOLVED, That the American Bar Association urges state, local and territorial bar associations to facilitate the development of Homeless Court Programs.

118 (IR&R, etc.)
Approved a revised resolution urging Congress to conduct regular and timely oversight of the government's use of the Foreign Intelligence Surveillance Act ("FISA") to ensure that FISA investigations comply with the First, Fourth and Fifth Amendments to the Constitution.

RESOLVED, That the American Bar Association urges the Congress to conduct regular and timely oversight, including public hearings (except when Congress determines that the requirements of national security make open proceedings in appropriate) to ensure that government investigations undertaken pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq. ("FISA" or "the Act") do not violate with the First, Fourth, and Fifth Amendments to the Constitution and adhere to the Act's purposes of accommodating and advancing both the government's interest in pursuing legitimate intelligence activity and the individual's interest in being free from improper government intrusion.

FURTHER RESOLVED, That the American Bar Association urges the Congress to consider amendments to the Act to:
(1) Clarify that the procedures adopted by the Attorney General to protect United States persons, as required by the Act, should ensure that FISA is used when the government has a significant (i.e., not insubstantial), foreign intelligence purpose, as contemplated by the Act, and not to circumvent the Fourth Amendment; and
(2) Make available to the public an annual statistical report on FISA investigations, comparable to the reports prepared by the Administrative Office of the United States Courts, pursuant to 18 U.S.C. sec. 2519, regarding the use of Federal wiretap authority.

August 2003

101A (CJS, Stg. Comm. Unmet Legal Needs of Children)
Standard 19-2.3 and 19-2.4 were amended and the resolution approved

Standard 19-2.3 Notification of collateral sanctions before plea of guilty

(a) The rules of procedure should require a court to ensure, before accepting a plea of guilty, that the defendant has been informed of collateral sanctions made applicable to the offense or offenses of conviction under the law of the state or territory where the prosecution is pending, and under federal law. Except where notification by the court itself is otherwise required by law or rules of procedure, this requirement may be satisfied by confirming on the record that defense counsel’s duty of advisement under Standard 14-3.2(f) has been discharged.

(b) Failure of the court or counsel to inform the defendant of applicable collateral sanctions shall not be a basis for withdrawing the plea of guilty, except where otherwise provided by law or rules of procedure, or where the failure renders the plea constitutionally invalid.

Standard 19-2.4 Consideration of collateral sanctions at sentencing

. . .

(c) Failure of the court or counsel to inform the defendant of applicable collateral sanctions shall not be a basis for challenging the sentence, except where otherwise provided by law or rules of procedure.

and the following resolution was then approved:

RESOLVED, That the American Bar Association adopts the black letter ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, dated August 2003.

101B (CJS, CMPDL, IR&R, SCULNC, SCLAID)
Approved

RESOLVED, That the American Bar Association encourages state, local and territorial bar associations, judges, prosecutors, defenders and police to instill public confidence in the fairness of the justice system by making concerted efforts to assure that the justice system provides fair and equal treatment for all youth.

FURTHER RESOLVED, That the American Bar Association urges state, local and territorial bar associations, judges, prosecutors, defenders and police to address disparate treatment of racial and ethnic minority youth in the justice system as a serious problem by adhering to the following principles:
1. State, local, and territorial bar associations should provide education and training on addressing the disparate treatment of youth and ensure that courts maintain the goal of reducing disparate treatment.
2. Judges should obtain training on the disparate treatment of youth, promote the use of objective risk assessments, guard against overcharging, ensure meaningful access to objective risk assessments, guard against overcharging, ensure meaningful access to counsel, and maintain a jurisdictional goal of reducing disparate treatment.
3. Prosecutors should obtain training on the disparate treatment of youth, ensure their decisions are based on objective criteria, seek alternatives to formal prosecution, and take a leadership role in ensuring reduction in the disparate treatment of youth.
4. Defenders should obtain training on the disparate treatment of youth, advocate for improved data collection and use of objective risk assessments, ensure that their clients receive culturally appropriate services, advocate for community based alternatives to detention, and maintain in (sic) active role in reducing disparate treatment
5. Police should obtain training on the disparate treatment of youth, keep detailed data regarding their contact and geographic patrolling of youth, be familiar with diversion and community-based programming, work with court personnel to develop community resources, and take a leading role in reducing the disparate treatment of youth.

103 (Commission on the 21st Century Judiciary; JD, FL, SCFJI; SCJI; CfJ)
Approved as revised (See Summary of Recommendations for revisions to principles)

RESOLVED, That the American Bar Association adopts the Principles and Conclusions of the Commission on the 21st Century Judiciary, dated August 2003, to ensure judicial independence, accountability and efficiency.

FURTHER RESOLVED, That the American Bar Association urges all state, local and territorial bar associations to ensure the integrity of state and territorial judiciaries by promoting the implementation of the Principles and Conclusions of the Commission on the 21st Century Judiciary.

104 (JD, CfJ; SCJI)
Approved

RESOLVED, That the American Bar Association urges judges, court personnel and judicial organizations to incorporate as an integral function of their position, furtherance of the public's understanding of and confidence in the American system of justice.

FURTHER RESOLVED, That the American Bar Association urges judges, court personnel and judicial organizations to develop, support and actively participate in public education programs about the law and the justice system, in order to promote the trust and confidence of the public that is crucial to maintaining an independent judiciary.

105B (SCJI; SCEPR; JD; CfJ; SCFJI)
Approved

RESOLVED, That the American Bar Association adopts the amendments to the Model Code of Judicial "Conduct (1990), dated August 2003.

112B (IR&R)
Approved

RESOLVED, That the American Bar Association opposes efforts to repeal Section 224 of the USA PATRIOT Act, Pub. L .No. 107-56 ("the Act"), which provides that certain of the surveillance authorities granted under Title II of the Act will expire on December 31, 2005;

FURTHER RESOLVED, That the American Bar Association urges Congress to conduct a thorough review of the implementation of the powers granted to the Executive Branch under the Act before considering legislation that would extend or further expand such powers; and

FURTHER RESOLVED, That the American Bar Association urges the Executive Branch to cooperate with the congressional committees of jurisdiction to ensure that they have timely access to all information they require to fulfill their oversight responsibilities with respect to the Act.

113 (CLR&F; IOLTA; CJS; G&PSLD; LEAB; SCLAID; SCPB&PS)
Approved

RESOLVED, That the American Bar Association reaffirms its encouragement of law schools, state, local and territorial bar associations and foundations, IOLTA programs, public service employers and federal, state and territorial lawmakers to establish programs, such as loan repayment assistance or forgiveness programs and public service scholarships, to enable law graduates to accept and remain in lower-paying government and public service legal employment.

117 (S&LGL)
Approved (142; 103)

RESOLVED, That the American Bar Association supports increased federal funding to state, local and territorial governments, including public authorities, to enable these "first responders" to prevent terrorist attacks and increase their readiness to respond to any attacks that do occur.

119A TFCR; …
Approved (218; 201)

RESOLVED, That Rule 1.6 of the Model Rules of Professional Conduct and its Comment be amended as follows:
RULE 1.6; CONFIDENTIALITY OF INFORMATION
(Proposed additions are underlined; stricken text indicates proposed deletions)
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) (2) to secure legal advice about the lawyer's compliance with these Rules;
(5) (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) (4) to comply with other law or a court order.

(Revised commentary not included here; see resolution)

120 (DV; FL; YLD; NAWL; HL; Tax; SCULNC)
Approved as amended

RESOLVED, That the American Bar Association encourages law schools and law students to promote awareness of domestic violence through law school activities and programs.

301 (Task Force on Enemy Combatants, CJS, IR&R, etc.)
Approved:
Calls upon Congress and the Executive Branch to ensure that all defendants in any military commission trials that may take place have the opportunity to receive the zealous and effective assistance of Civilian Defense Counsel

Midyear 2004

8A (NY County Lawyers' Association; Criminal Justice Section)
Amended and approved, as follows:

RESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial investigations.

FURTHER RESOLVED, That the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, to provide necessary funding, and to provide appropriate remedies for non-compliance.

103A (IR&R, SCL&NS; IL&P, CHR, Criminal Justice Section, Bar Association of Metropolitan St. Louis)
Approved

RESOLVED, That the American Bar Association recognizes the principle of universal criminal jurisdiction as an important tool in the worldwide effort to strengthen the rule of law by providing the means for the prosecution of persons who have committed serious international crimes, regardless of where they are committed or by whom or against whom, and supports the principle when it is exercised consistent with the limitations set forth herein;

FURTHER RESOLVED, That subject to such other limitations as may be imposed by international law, universal criminal jurisdiction should be exercised only (a) for serious international crimes that clearly are recognized by treaty or customary international law authorizing such jurisdiction, (b) where there are facts supporting a reasonable belief that such a crime may have been committed by the suspect, and (c) when exercised in accordance with international norms on the protection of human rights in the context of criminal proceedings;

FURTHER RESOLVED, That in exercising their jurisdiction whether to prosecute in such cases, nations should not prosecute a citizen or lawful permanent resident of another nation where (a) the case is being investigated or prosecuted by that nation, unless that nation is unwilling or unable genuinely to carry out the investigation or prosecution and to do so in accordance with international human rights norms or (b) the case has been investigated by that nation and that nation has decided not to prosecute the person concerned, unless the decision resulted from an unwillingness or inability of that national genuinely to prosecute and to do so in accordance with such international human rights norms;

FURTHER RESOLVED, That since the United States has adequate procedures to investigate and prosecute serious international crimes in both its federal and military courts and to do so in accordance with international human rights norms, so long as the United States Government uses those procedures in the fashion set forth herein, no other nation should prosecute U.S. citizens or lawful permanent residents for crimes on the basis of universal criminal jurisdiction; and

FURTHER RESOLVED, That the American Bar Association urges the United Stats Government to work with governments of other nations to take all reasonable steps to ensure that the application of universal criminal jurisdiction by all nations is uniform and consistent with the foregoing.

105 (Litigation, Bar Assoc. San Francisco, AILA, CIPP&PB, Criminal Justice Section)
Approved as amended

RESOLVED, That the American Bar Association,
1. Urges that the Federal Government retain exclusive jurisdiction over civil immigration matters,
2. Opposes delegation of legal authority to state, territorial and local police to enforce federal civil immigration laws, and
3. Opposes criminalization of civil violations of immigration law.

109 (YLD, Dispute Resolution, Family Law, General Practice, SC Public Education)
Appoved

RESOLVED, That the American Bar Association encourages federal, state, territorial and local governments to adopt legislation that promotes school violence prevention education, instruction, awareness training and programs for children, parents, teachers and school administrators;

FURTHER RESOLVED, That the American Bar Association encourages lawyers to support school violence prevention education in schools and community settings by volunteering time after having received any necessary training or contributing resources to promote programs that help prevent violent acts by children through encouraging smart decisions and timely, appropriate resolution of conflict.

110 (SC CLE, SREDP, National Native American Bar Association; National Asian Pacific ABA; NBA; ALI-ABA CCPE, Family Law, Labor and Employment Law, Criminal Justice Section.
Approved as revised:

RESOLVED, That the Commentary to Section 2 of the Model Rule for Minimum Continuing Legal Education be amended to include the following language:

Regulatory systems should require that lawyers, as part of their mandatory continuing legal education either through a separate credit or through existing ethics and professionalism credits, complete programs related to the promotion of racial and ethnic diversity in the legal profession the promotion of full and equal participation in the profession of women and persons with disabilities, and the elimination of all forms of bias in the profession. Lawyers who practice in states and territories that do not require mandatory continuing legal education a encouraged to complete such programs as part of their continuing legal education.

113A (Judicial Division)
Standards subsections (a) and (b) revised; resolution approved

RESOLVED, That the American Bar Association adopts the black letter of the Standard 1.65 Court Use of Electronic Filing Processes as an amendment to the Standards Relating to Court Organization, dated February 2004.

116 (Criminal Justice Section)
Approved as revised

RESOLVED, That the American Bar Association urges Congress to enact legislation that would address the complex problem presented by the large number of adults with mental illness and juveniles with mental or emotional illness or disorders who come into contact with the criminal and juvenile justice systems; such legislation should provide for:
1. Grant programs to help states, territories and localities develop pre- and post-booking diversion programs;
2. Prevention, in-jail, in-custody, and community-based treatment programs, including re-entry services to adults with mental illness and juveniles with mental or emotional illness or disorders; and
3. Effective training for mental health personnel, law enforcement, judges, court and corrections personnel, probation and parole personnel, prosecutors, and defenders.

FURTHER RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to increase funding and financing for public mental health services so that adults with mental illness and juveniles with mental or emotional illness or disorders can obtain the support necessary to enable them to live independently in the community, and to avoid contact with the criminal and juvenile justice systems.

FURTHER RESOLVED, That the American Bar Association urges federal, state, local and territorial governments to improve their response to adults with mental illness and juveniles with mental or emotional illness or disorders who come into contact with the criminal justice and juvenile justice systems, by developing and promoting programs, policies and laws that would accomplish the following:
1. Improve collaboration among professionals, administrators, and policymakers in the criminal justice, juvenile justice, mental health, and substance abuse systems;
2. Provide training on mental illness and co-occurring disorders and the mental health and substance abuse systems to judges, court and corrections personnel, law enforcement, probation and parole personnel, prosecutors, and defenders who deal with adults with mental illness and juveniles with mental or emotional illness or disorders;
3. Develop pre- and post-booking programs to divert, where appropriate, adults with mental illness and juveniles with mental or emotional illness or disorders from the criminal and juvenile justice systems;
4. Ensure that law enforcement, courts, and correctional agencies properly accommodate adults with mental illness and juveniles with mental or emotional illness or disorders with whom they come into contact, both as crime victims and as individuals suspected of committing a crime;
5. Assist governments at all levels in developing local solutions to the complex problems of dealing with mental illness in the criminal and juveniles justice systems;
6. Improve federal, state and local policy and practice with respect to access to health and income benefits for persons with mental illness being released from incarceration so that such benefits are available to them immediately upon release without administrative delays; and
7. Collect information and improve research regarding mental illness and individuals with mental illness in the criminal and juvenile justice systems, particularly research on interventions that prevent criminal justice system involvement and reduce recidivism.

August 2004

111B (Criminal Justice Section)
Approved

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 adopting the following principles:

1. Crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability, and timely analysis of forensic evidence.

2. Crime laboratories and medical examiner offices should be adequately funded.

3. The appointment of defense experts for indigent defendants should be required whenever reasonably necessary to the defense.

4. Training in forensic science for attorneys should be made available at minimal cost to ensure adequate representation for both the public and defendants.

5. Counsel should have competence in the relevant area or consult with those who do where forensic evidence is essential in a case.

111C (Criminal Justice Section)
Approved

RESOLVED, That the American Bar Association adopts the American Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures dated August 2004.

FURTHER 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 adopting the following principles:

1. Police and prosecutors craft detailed guidelines for conducting lineups and photospreads in a manner that maximizes their likely accuracy;

2. Police and prosecutors receive periodic training on how to implement the above-referenced guidelines,

3. Police and prosecutors receive periodic training on non-suggestive techniques for interviewing witnesses;

4. Internal mechanisms be created within police departments and prosecutors’ offices to periodically update such guidelines to incorporate advances in social scientific research and in the continuing lessons of practical experience; and

5. Every set of guidelines should address at least the subjects, and should incorporate at least the social scientific teachings and best practices, set forth in the American Bar Association Statement of Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures dated August 2004.

FURTHER RESOLVED, That the American Bar Association, to improve the ability of juries and judges to make fully informed trial decisions concerning the accuracy of eyewitness identifications, urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by adopting the following principles:

1. Courts should have the discretion, where appropriate in an individual case, to allow a properly qualified expert to testify both pretrial and at trial on the factors affecting eyewitness accuracy; and

2. Whenever there has been an identification of the defendant prior to trial, and identity is a central issue in a case tried before a jury, courts should consider exercising their discretion to use a specific instruction, tailored to the needs of the individual case, explaining the factors to be considered in gauging the accuracy of the identification.

111E (Criminal Justice Section)
Approved

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 adopting the following principles:

1. Establish and enforce written procedures and policies governing the collection and preservation of evidence and other aspects of the conduct of criminal investigations;

2. Establish training programs and disciplinary procedures to assure that investigative personnel are prepared and accountable for their performance;

3. Establish adequate opportunity for citizens and investigative personnel to report misconduct in investigations; and

4. Establish adequate funding for all of the above.

 

111F (Criminal Justice Section)
Approved

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 adopting the following principles:

1. Provide adequate funding to prosecutors’ offices;

2. Establish standards to ensure that workloads of prosecutors are maintained at levels that allow them to provide competent legal representation;

3. Ensure that law enforcement agencies, laboratories and other experts understand their obligations to inform prosecutors about exculpatory or mitigating evidence;

4. Establish procedures for evaluating cases that rely upon eyewitness identification, confessions or testimony from witnesses that receive a benefit; and

5. Draft legislation to provide that material evidence be preserved for a reasonable period of time after criminal appeals are exhausted to permit post-conviction review.

 

111G (Criminal Justice Section)
Approved

RESOLVED, That the American Bar Association adopts the ABA Criminal Justice Standards on Speedy Trial and Timely Resolution of Criminal Cases, dated August 2004, to supplant the Second Edition ABA Criminal Justice Standards on Speedy Trial.


121A (Kennedy Commission)
Approved with amendment

RESOLVED, That the American Bar Association urges states, territories and the federal
government to ensure that sentencing systems provide appropriate punishment without
over-reliance on incarceration as a criminal sanction, based on the following principles:
(1) Lengthy periods of incarceration should be reserved for offenders who pose
the greatest danger to the community and who commit the most serious offenses.
(2) Alternatives to incarceration should be provided when offenders pose minimal
risk to the community and appear likely to benefit from rehabilitation efforts.
FURTHER RESOLVED, That the American Bar Association urges that states, territories
and the federal government:
(1) Repeal mandatory minimum sentence statutes;
(2) Employ sentencing systems consistent with Blakely v. Washington, 542 U.S.
___, 72 U.S.L.W. 4546 (June 24, 2004), that guide judicial discretion to avoid
unwarranted and inequitable disparities in sentencing among like offenses and
offenders, but permit courts to consider the unique characteristics of offenses
and offenders that may warrant an increase or decrease in a sentence;
(3) Require a sentencing court to state on the record reasons for increasing or
decreasing a presumptive sentence, and permit appellate review of any
sentence so imposed.
(4) Assign responsibility for monitoring the sentencing system to an entity or
agency with sufficient authority and resources to:
(a) Recommend or adopt alternatives to incarceration that have proven
successful in other jurisdictions; and
(b) Gather and analyze data as to criminal activity and sentencing and the
financial impact of proposed legislation, and consider whether changes
in sentencing practices should be recommended or adopted in light of
increases or decreases in crime rates, changes in sentencing patterns,
racial disparities in sentencing, correctional resources, and availability
of sentencing alternatives.

(5) Study and fund treatment alternatives to incarceration for offenders who may
benefit from treatment for substance abuse and mental illness.
(6) Adopt diversion or deferred adjudication programs that, in appropriate cases,
provide an offender with an opportunity to avoid a criminal conviction.
(7) Develop graduated sanctions for probation and parole violations that provide
for incarceration only when a probation or parole violator has committed a
new crime or poses a danger to the community.
FURTHER RESOLVED, That the American Bar Association recommends that the
Congress:
(1) Repeal the 25 percent rule in 28 U.S.C. §994(b)(2) to permit the United States
Sentencing Commission to revise, simplify and recalibrate the federal
sentencing guidelines and consider state guideline systems that have proven
successful.
(2) Reinstate the abuse of discretion standard of appellate review of sentencing
departures, in deference to the district court’s knowledge of the offender and
in the interests of judicial economy.
(3) Minimize the statutory directives to the United States Sentencing Commission
to permit it to exercise its expertise independently.
(4) Repeal the limitation on the number of judges who may serve on the United
States Sentencing Commission.

 

121B (Kennedy Commission)
Approved

RESOLVED, That the American Bar Association urges states, territories and the federal
government to strive to eliminate actual and perceived racial and ethnic bias in the
criminal justice system by enacting measures that would:
(1) Establish Criminal Justice Racial and Ethnic Task Forces to:
(a) include individuals and entities who play important roles in the criminal
justice process, and invite community participation from interested
groups such as advisory neighborhood commissions and local civil
rights organizations; and
(b) design and conduct studies to determine the extent of racial and
ethnic disparity in the various stages of criminal investigation,
prosecution, disposition and sentencing; make periodic public reports on
the results of their studies; and make specific recommendations intended
to eliminate racial and ethnic discrimination and unjustified racial and
ethnic disparities.
(2) Require law enforcement agencies to develop and implement policies and
procedures to combat racial and ethnic profiling, including education and training,
data collection and analysis and other “best practices” that have been
implemented throughout the country through voluntary programs and legislation.
(3) Require legislatures to conduct racial and ethnic disparity impact analyses to
evaluate the potential disparate effects on racial and ethnic groups of existing
statutes and proposed legislation; review the data gathered and recommendations
made by Criminal Justice Racial and Ethnic Task Forces; and propose legislative
alternatives intended to eliminate predicted racial and ethnic disparity at each
stage of the criminal justice process.

 

121C (Kennedy Commission)
Approved with amendment

RESOLVED, That the American Bar Association urges states, territories and the federal
government to establish standards and provide an accessible process by which prisoners may
request a reduction of sentence in exceptional circumstances, both medical and non-medical,
arising after imposition of sentence, including but not limited to old age, disability, changes in
the law, exigent family circumstances, heroic acts, or extraordinary suffering; and to ensure that
there are procedures in place to assist prisoners who are unable to advocate for themselves.
FURTHER RESOLVED, That the American Bar Association urges expanded use of the
procedure for sentence reduction for federal prisoners for “extraordinary and compelling
reasons” pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) and that:
(1) the Department of Justice ensure that full and fair consideration is given to prisoner
requests for sentence reduction, including the implementation of procedures to assist
prisoners who are unable to advocate for themselves; and
(2) the United States Sentencing Commission promulgate policy guidance for sentencing
courts and the Bureau of Prisons in considering petitions for sentence reduction,
which will incorporate a broad range of medical and non-medical circumstances.
FURTHER RESOLVED, That the American Bar Association urges states, territories and the
federal government to expand the use of executive clemency and:
(1) establish standards governing applications for executive clemency, including both
commutation of sentence and pardon; and
(2) specify the procedures that an individual must follow in order to apply for clemency
and ensure that they are reasonably accessible to all persons.
65
F FURTHER RESOLVED, That the American Bar Association urges states, territories and the
federal government to establish an accessible process by which offenders who have served their
sentences may request pardon, restoration of legal rights and privileges, including voting rights,
and relief from other collateral disabilities.
FURTHER RESOLVED, That the American Bar Association urges bar associations to establish
programs to encourage and train lawyers to assist prisoners in applying for pardon, restoration of
legal rights and privileges, relief from other collateral sanctions, and reduction of sentence.

 

121D (Kennedy Commission)
Approved with amendment

RESOLVED, That the American Bar Association urges states, territories and the federal
government to ensure that prisoners are effectively supervised in safe, secure environments; that
correctional staff are properly trained and supervised; and that allegations of mistreatment are
promptly investigated and are dealt with swiftly and appropriately.
FURTHER RESOLVED, That the American Bar Association urges states, territories and the
federal government to prepare prisoners for release back into the community by implementing
policies and programs that:
(1) from the beginning of incarceration, provide appropriate programming, including
substance abuse treatment, educational and job training opportunities, and mental
health counseling and services; and
(2) encourage prisoner participation by giving credit toward satisfaction of sentence for
successful completion of such programs.
FURTHER RESOLVED, That the American Bar Association urges states, territories and the
federal government to assist prisoners who have been released into the community by
implementing policies and programs that:
(1) establish community partnerships that include corrections, police, prosecutors,
defender organizations, and community representatives committed to promoting
successful reentry into the community and that measure their performance by the
overall success of reentry; and
(2) assist prisoners returning to the community with transitional housing, job placement
assistance, and substance abuse avoidance.
77
FURTHER RESOLVED, That the American Bar Association urges states, territories and the
federal government, in order to remove unwarranted legal barriers to reentry, to:
(1) identify collateral sanctions imposed upon conviction and discretionary
disqualification of convicted persons from otherwise generally available opportunities
and benefits;
(2) limit collateral sanctions to those that are specifically warranted by the conduct
underlying the conviction, and prohibit those that unreasonably infringe on
fundamental rights or frustrate successful reentry; and
(3) limit situations in which a convicted person may be disqualified from otherwise
available benefits and opportunities, including employment, to the greatest extent
consistent with public safety.
FURTHER RESOLVED, That the American Bar Association urges law schools to establish reentry clinics in which students assist individuals who have been imprisoned and are seeking to reestablish themselves in the community, regain legal rights, or remove collateral disabilities.

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 claimant’s 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 innocent’s 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 clients’ 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 client’s admissions or statements of facts constituting guilt or the client’s 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-citizen’s deportation or removal based upon conviction of a crime, by making a “judicial recommendation against deportation” 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 “aggravated felony” 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 “full and unconditional;”

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. 107‑40, 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 participants’ 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 “homeless person” 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 expert’s report, as follows:

(i) an expert’s 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 expert’s 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 expert’s 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 lawyers’ billable hours and permit law firms the flexibility necessary to manage themselves under their own circumstances and more accurately to measure each individual’s contribution to achieving all of the firm’s 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 “privilege”).

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 party’s claim that the material is privileged.

B) The receiving party should be allowed to challenge the timeliness of the producing party’s 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 (“Employees”) 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 America’s 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 lawyers’ 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 individual’s 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 officer’s supervision who successfully complete supervision, as well as those whose probation or parole is appropriately revoked, taking into account the nature of the officer’s 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 agency’s 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 person’s 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 offender’s 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 “presumption of fitness” 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 person’s 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 individual’s criminal record to demonstrate that the public interest in receiving such information clearly outweighs the individual’s interest in security and privacy.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and local governments to make evidence of an individual’s conviction inadmissible in any action alleging an employer’s 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 public’s right to information against the government’s 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 lawyer’s 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 Court’s 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 ttp://www.abanet.org/leadership/2007/midyear/docs/journal/DAILYJOURNALFINALVERSION.doc “CJSMISC/CJSpolicy/ResolutionsApproved for full text]”

 

ABA Rules of Professional Conduct

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;

MULTIJURISDICTIONAL PRACTICE OF LAW

…. [14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s 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 lawyer’s 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 client’s 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 lawyer’s 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 .

….

 

#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:

  1. 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;
  2. are enforced against persons experiencing homelessness to a greater extent than others who engage in the same practice or act; or
  3. 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:

  1. 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 residents’ physical and emotional safety, educational, mental health, and other treatment needs.
  2. Require government monitoring and enforcement of the operational standards outlined in the statute.
  3. 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.abanet.org/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 “extreme hardship” upon removal from the United States;

4. Provide an exception to the “good moral character” requirement for victims of trafficking and their family members when the applicant’s 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 clients’ 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 member’s release from duty in a Combat Zone. Suspension or waiver of one’s general membership obligations does not relieve a member of his or her duty to meet the bar’s 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 government’s 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 plaintiff’s claim or the defendant’s 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 government’s 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 defendant’s ability to defend against the plaintiff’s 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 otherwise‑eligible incarcerated persons to provide continuity of Medicaid eligibility to persons newly‑released 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 Pakistan’s constitution as it existed before the November 3, 2007, emergency decree; reinstate Pakistan’s 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 prosecutor’s 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 prosecutor’s 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 prosecutor’s 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 prosecutor’s 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 defendant’s 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 prosecutor’s 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 revised

RESOLVED, 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 “Detention Standards”).

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 “indigent” 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 facility’s 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.

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 public’s (including potential clients) interest in access to all material information about the applicant’s 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.

300 - Urges Appropriate Treatment of “Dual Jurisdiction” 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 “dual jurisdiction” youth (abused and neglected youth with juvenile “dependency” 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 youth’s 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 youths’ 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 Committee’s 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 “Key Requirements for the Effective Monitoring of Correctional and Detention Facilities”, 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 “Key Requirements for the Effective Monitoring of Correctional and Detention Facilities.”
(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 entity’s 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 facility’s 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 entity’s purposes, the monitoring entity works collaboratively and constructively with administrators, legislators, and others to improve the facility’s 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 facility’s operations or conditions.

12. The monitoring entity has the authority to conduct confidential interviews with any person, including line staff and inmates, concerning the facility’s 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 facility’s 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 facility’s 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 entity’s reports are public, accessible through the Internet, and distributed to the media, the jurisdiction’s 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 jurisdiction’s 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 enforcement’s 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 “racial and ethnic profiling.” 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 Court’s investigations and proceedings;

FURTHER RESOLVED, That the Association calls on the United States Government to participate in all future sessions of the International Criminal Court’s 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:

  1. Supports funding for legal assistance for global victims of gender-based violence in criminal and civil cases;
  2. 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 victims’ access to justice and create awareness about the law;
  3. Supports efforts to foster a multidisciplinary and community approach to serving victims and ending gender-based violence; and
  4. 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 President’s 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 Court’s directive in Boumediene v. Bush and President Obama’s January 22, 2009 Executive Order on “Review and Disposition of Individuals Detained At The Guantanamo Bay Naval Base And Closure of Detention Facilities,” 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 “enemy combatants” 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 government’s 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 “enemy combatant” 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 A ssistance for I mmigration D etainees ( 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 individual’s 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 government’s 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 victims’ 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 child’s 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 attorneys’ 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 Commission’s 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 Commission’s 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 lawyer’s association with a prior firm, and . . .

* * *

110: United Nations “Responsibility to Protect” 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 court’s refusal to stop the assignment of new cases or a court’s 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 juvenile’s 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 court’s assistance in resolving disputes over disclosure obligations.

 

102E: Prisonerchild 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 prisoner’s 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 parents’ 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 (“Article 36”) 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 States’ 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 national’s country, and that if the arrestee or detainee chooses to exercise this right the advising officer notify the pertinent official in the officer’s agency or department of that fact; and

(b) Enacting legislation that renders procedural default rules inapplicable to an assertion in criminal cases that the defendant’s 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 national’s 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 national’s consulate;

(e) Providing training for prosecutors, defense counsel, judges, and law enforcement personnel as to the United States’ 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 Convention’s 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 (“NTA”) 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 (“INA”) regarding the removal of noncitizens convicted of certain crimes that would:

(a) Amend the definition of “aggravated felony” 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 judge’s 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 “clock-stop” 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 system’s 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 “Department”) to:

( a) continue in its commitment to investigate allegations of professional misconduct on the part of the Department’s 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 “error” and “prosecutorial misconduct.”

 

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:

  1. 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;
  2. 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
  3. 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 “best practices” 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, “best practices,” 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 nation’s 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.

 

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