August 18, 2017

ABA House urges Congress add courthouses to ‘sensitive locations’ to ICE guidelines

The American Bar Association House of Delegates, which determines association-wide policy, urged Congress Tuesday to add courthouses to the “sensitive locations” list that guides immigration enforcement of undocumented workers.

The action by the House — made up of 601 delegates from state, local and other bar associations and legal groups from across the country — came on the final day of its two-day meeting in New York. The House also Tuesday reaffirmed the ABA’s long-standing position opposing mandatory minimum sentences.

Current U.S. Immigration and Customs Enforcement policy restricts immigration enforcement actions at a handful of locations, such as schools, health-care facilities, places of worship and religious ceremonies, and public demonstrations. Resolution 10C urges Congress to add courthouses to the list.

Proponents of the resolution cited examples across the country where individuals avoided courthouses because of fears that ICE had been notified of their pending presence and their undocumented status. They 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 deter other witnesses from testifying.

In one case cited, a domestic violence witness refused to testify when she learned that ICE agents were present and looking for her, and the defendant walked free.

In Resolution 10B, 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 blacks, who proponents say are more likely to be charged with offenses with sentences in this category.

Kevin Curtin, chief presenter of the sponsoring Massachusetts Bar Association, said there are “many unintended consequences” of minimum mandatory sentences, which has received increasing support of late. “It simply doesn’t work,” he said, adding it “leads to expensive over-incarceration of Americans.”

On Monday, an immigration action also emerged as one of the key issues, as the House supported the principle that undocumented law students should not be denied bar admission solely because of their immigration status.

Resolution 108, proposed by the ABA Law Student Division and embraced by the ABA Young Lawyers Division, recommends that state courts with authority to regulate admission to the bar admit undocumented law school graduates if they are “seeking legal status.” The resolution, which passed by a voice vote with modest opposition, was introduced by Thomas Kim, a third-year law student and incoming chair of the ABA Law School Division, who shared his own personal story of coming to the United States as a child without legal status.

Kim, a native of South Korea, attends Arizona State University Sandra Day O’Connor College of Law and has been a summer associate for a Big Law firm. He recounted how 12 years ago a lawyer “cheated the family” when they applied for legal status. From that point, Kim wanted to pursue law and eventually received 30 offers from law schools with full tuition. As an undocumented person, he can only get admitted to the bar in a minority of states and urged the change so “hundreds of law students like me” can be licensed.

Among other proposals, the House considered resolutions in these areas over its two-day meeting:

·        Justice issues: The House approved several resolutions related to juvenile justice and the bail system for adults. Drawing from the ABA Criminal Justice Standards, Resolution 112A seeks to address the predicament faced by juveniles caught in child welfare and criminal justice systems at the same time. Resolution 112D urges the end to the use of bail/bond in the juvenile justice system. Resolution 112E would prohibit the use of solitary confinement for those under 18 years old. And, Resolution 112C urges governments to adopt policies that favor release on recognizance, advocating that pre-trial detention should not be occur solely on the ability to pay.    

·        Gun violence: Following the lead of several states, the House approved Resolution 118 that urges governments to allow courts to issue gun violence restraining orders, including ex parte orders. Proponents called the resolution a “modest, common-sense reform” that would help families and others prevent suicides and other acts of violence through temporary restraining orders. Opponents raised First and Fourth Amendment issues as well as the one-sided nature of an ex parte proceeding. The resolution passed on a voice vote with modest opposition.

·        Records expungement: Two different resolutions would affect those exonerated from a charge as well as those found guilty of minor offenses. Resolution 112F urges governments to allow individuals to petition to expunge all criminal records pertaining to charges of arrests that did not end in a conviction. Resolution 112G urges that convictions for minor violations for certain crimes related to homelessness be eligible to be expunged.

·        Federal courts: In passing Resolution 104, the House reaffirmed its opposition to restructuring the U.S. Court of Appeals for the Ninth Circuit, one of 13 in the federal appellate system. Legislation has been proposed in Congress to split up the circuit, but there is strong opposition in the legal community. Speakers said the large majority of the 29 appellate judges on the court also oppose the split, as have bar groups in the western states and others.

·        Gideon issues: Resolution 106 urges Congress to give the U.S. Department of Justice more powers to ensure compliance with the 1963 U.S. Supreme Court decision in Gideon v. Wainwright, which gave defendants in most criminal cases the Sixth Amendment right to counsel. Lora J. Livingston, a Texas judge who presented the resolution on behalf of the Standing Committee on Legal and Indigent Defendants, said the “the promise of Gideon has been broken” as many defendants are provided counsel who prove ineffective. Resolution 115 supports the appointment of counsel at federal government expense to represent all indigent persons in immigration removal proceedings.

All resolutions, including their status, can be found here. Only proposals that pass the House constitute association policy.