December 14, 2017

ABA Opposes Mandatory Minimum Sentences

By Gregory G. Brooker and Alexander W. Purdue

The 139th meeting of the ABA House of Delegates took place at the ABA Annual Meeting in New York City on August 14 and 15, 2017. To see a listing of key resolutions addressed by the House at its New York City meeting, visit www.americanbar.org/news.

Remarks by Outgoing ABA President Linda Klein
On the first day of business, outgoing ABA President Linda Klein addressed the House and recapped her year as president. Klein highlighted one of her initiatives, the Veterans Legal Services Initiative, which created a free online legal checkup tool for veterans. During her year as president, the ABA also created VetLex, an online platform that helps veterans find pro bono legal assistance. In addition, Klein lauded the 150 pro bono events held around the country to help veterans in need during the ABA's Celebration for Pro Bono.

President Klein also discussed the ABA's response to "the horrific spate of violence between police and citizens." She stated that the ABA formed the Task Force on Building Public Trust in the American Justice System, which produced a report in February. She noted that the ABA also developed a toolkit that helps bring bars and communities together, to reduce mistrust in the justice system.

"This was our year. It was a defining moment for our profession and the ABA," said Klein. "It was a year when we stood up for the rule of law, for our fair and impartial judiciary, for access to justice for all," she said.

Remarks of New ABA President Hilarie Bass
Linda Klein passed the presidential gavel to new ABA President Hilarie Bass. Bass thereafter spoke to the House of Delegates about her initiatives, starting with ABA Legal Fact Check. "The concept is simple," she said. "In an era of alternative news and fake facts, the ABA should be the definitive source of 'real facts' when it comes to the law." So, whenever a politician or member of the media makes a statement about the law that is false or inaccurate, "ABA Legal Fact Check will, within a matter of hours, post the correct facts on the ABA website and distribute the message through press releases." President Bass said the experience of representing two children pro bono, who wanted to be adopted by their gay foster parents, which led to Florida overturning its ban on gay adoption, was the impetus for her "pro bono theme" this year. Bass aims to match lawyers at firms, bar associations and in-house counsel departments with more than 350 shelters that provide services for the more than 500,000 children who live on the streets. "We will ensure that our volunteer lawyers have the information they need to address the basic legal issues of this population -- whether it is issues relating to entering school, obtaining legal identification or expunging a criminal infraction," she said. "Extending a helping hand to these children will likely change the trajectory of their lives."

Bass also discussed the newly formed Commission on the Future of Legal Education. That group will examine why bar examination scores have plummeted throughout the country and "also look into the role legal education can play in addressing the justice gap, as well as identifying skills that future lawyers will need to provide the most efficient service to their clients," she said.

Research shows that women lawyers in their 40s and 50s, "who should be at the peak of their success," are leaving the profession, Bass said. She will launch a "longitudinal study to better understand why women are leaving the practice of law in huge numbers," for which more than $380,000 has been raised. The effort will begin with a summit at Harvard Law School in November.

Resolutions of Interest to GPSLD
The House considered several resolutions in New York. Here is a recap of the major resolutions considered:

Resolution 10B: The House adopted Resolution 10B, which puts the ABA on record as opposing the imposition of "mandatory minimum sentences" in federal criminal cases. In adopting this resolution, the House reaffirmed the ABA's opposition of a half century to mandatory minimum sentences because it limits a judge's flexibility to consider circumstances and has a disparate impact on African Americans.

Resolution 10C: This resolution, which was adopted, urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify Department of Homeland Security guidelines regarding immigration enforcement. It would specifically add courthouses to the government's "sensitive locations" list, making them off-limits to ICE agents. The sponsors of the resolution argued that without designating courthouses as "sensitive locations," the effect would be to chill participation of undocumented victims and defendants from the justice process as well as to deter other witnesses from testifying.

Resolution 10D: Urges Congress and State Department to ensure criminal accountability for mass atrocities by having such matters reside in a special State Department office mandated to the pursuit of global criminal justice. The resolution was adopted.

Resolution 102B: The House adopted this resolution in a close vote. It urges adoption of laws and policies concerning trap-neuter-vaccinate-return programs for community cats.

Resolution 104: This resolution, which the House adopted, reaffirmed the ABA's opposition to restructuring the United States Court of Appeals for the Ninth Circuit and supported the ongoing efforts by the Ninth Circuit and other federal courts to utilize technological and procedural innovations to handle caseloads efficiently while maintaining coherent, consistent law in their respective jurisdictions.

Resolution 106: The House adopted this resolution, which urges Congress to enable the United States Department of Justice to ensure compliance with the Sixth Amendment right to effective assistance of counsel to: 1) pursue civil actions to obtain equitable relief where violations of that right occur and 2) recognize a cause of action for equitable relief in federal court from systemic violations of the right to counsel.

Resolution 112A, B, C, D, E, F & G: All of these resolutions, which were sponsored by the Criminal Justice Section, were adopted by the House. 112A adopts the ABA Criminal Justice Standards Relating to Dual Jurisdiction Youth; 112B amends the black letter ABA Standards for Criminal Justice: Prosecution Function, 4th Edition, and ABA Standards for Defense Function, 4th Edition; 112C urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds; 112D urges governmental entities to cease use of bail/bond in the juvenile justice system and to utilize objective criteria that do not have a discriminatory or disparate impact; 112E urges legislative bodies and governmental agencies to enact laws and adopt policies prohibiting the use of solitary confinement of children and youth under the age of 18; 112F urges governments to enact laws allowing individuals to petition to expunge all criminal justice records pertaining to charges or arrests that did not result in a conviction; and 112G urges governments to enact laws allowing for the expungement of convictions or other statutory or ordinance violations where a court enters a finding of guilt for actions performed in public spaces associated with homelessness.

Resolution 115: This resolution, which the House adopted, supports the appointment of counsel at federal government expense to represent all indigent persons in immigration removal proceedings in immigration court.

Resolutions 117A, 117B & 117C: These resolutions related to ABA President Klein's childhood education initiatives. All three resolutions were adopted by the House. 117A urged all governments to adopt measures that ensure equal access to adequately funded public schools; 117B urged all governments to develop age-appropriate curricula regarding civics and elections; 117C endorsed the ABA's Blueprint for Change: Education Success for Children in Foster Care and the Juvenile Justice Systems.

Resolution 118B: This resolution urged governments to enact statutes, rules, or regulations authorizing courts to issue gun violence restraining orders, including ex parte orders. It was adopted after a lively debate on the House floor.

Resolution 120: This resolution, which the House adopted, recommends review and improvement of the processes by which military records are corrected, discharge status petitions are considered, and the character of one’s discharge is reviewed.

Gregory G. Brooker is the Acting United States Attorney for the District of Minnesota. He was the Division Chair in 2014-2015. Alexander W. Purdue, Colonel, USAF (ret.) of Santa Fe, NM, was Division Chair in 2013-2014. Both serve as Division delegates.