While much of our policy focus remains concentrated on the City of Boston and the Commonwealth of Massachusetts, from time to time, whether it be our annual advocacy at ABA Day or BBA Council endorsement of an ABA Resolution, we turn our attention to the American Bar Association (ABA).
Founded in 1878, the ABA has over 400,000 members, making it one of the largest voluntary professional organizations in the world. The ABA House of Delegates (The House) is the policy-making body of the Association, and it meets twice a year to consider and adopt new policy resolutions on a range of issues related to the law and the legal profession. Once adopted, the Resolutions become official policy and the ABA is able to advocate for the measures contained within the resolution. The House is made up 601 delegates from state, local, and other bar associations and legal groups from across the country, and we are proud to be represented by two former BBA Presidents, Lisa Arrowood of Arrowood LLP and Mary Ryan, of Nutter, McClennen, & Fish LLP.
At the ABA Annual Meeting in New York earlier this month, the House considered a range of timely resolutions, and many of those that passed relate to issues we’ve also been taking a close look at here at the BBA.
ABA Resolution 115
First and foremost, we are happy to report that the House passed ABA Resolution 115, which, as you’ll recall, the BBA Council voted to endorse last month. The Resolution contains three key parts: 1) the ABA supports the appointment of counsel at federal expense to represent all indigent persons in immigration removal proceedings before the Executive Office for Immigration Review (Immigration Court and the Board of Immigration Appeals) and to advise such individuals of their rights to further appeal if necessary; 2) unless and until the federal government does this, the ABA encourages all levels of government to provide counsel to those without private or pro bono representation; and 3) the ABA encourages prioritizing government-funded counsel for individuals in removal proceedings who are detained.
Mary Ryan reported that in the days leading up to the vote on this resolution, proponents fanned out through many of the meetings of delegates and Section councils to educate the delegates about the resolution. This advocacy, along with the carefully crafted accompanying report, resulted in resounding support for the resolution.
Be sure to check out our prior Issue Spot blog for the full details on BBA endorsement of this important resolution!
Another interesting immigration-related resolution passed by the House involves an issue we’ve been tracking here in the Commonwealth: the presence of Immigration and Customs Enforcement (ICE) Officers in courthouses. Resolution 10C calls on Congress to amend Section 287 of the Immigration and Nationality Act to codify the Department of Homeland Security guidelines regarding immigration enforcement actions to include courthouses as “sensitive locations.” Currently, ICE limits enforcement at other locations deemed “sensitive,” including schools, health care facilities, places of worship, religious or civil ceremonies or observances, and public demonstrations.
By including courthouses in this category, immigration enforcement action would only be taken on a showing of exigent circumstances and with prior approval of a designated supervisory official. Exigent circumstances include those actions involving a national security matter, an imminent risk of death, violence or harm to person or property, an immediate arrest or pursuit of a dangerous felon or one that presents an imminent danger to public safety, or an imminent risk of destruction of evidence material to an ongoing criminal case.
Those calling for limits on ICE action at courthouses point to the potential interference with access to justice and the administration of justice. The Report accompanying Resolution 10C succinctly summarizes these issues, noting that immigration enforcement actions at courthouses:
…chill undocumented victims and defendants from seeking justice in court and deter witnesses from responding to legal process, frightened by the knowledge that they run the risk of being detained and deported should they participate in our system of justice, comply with lawful process requiring their participation, or dare enter an American courthouse.
In addition, the Report outlined the recent escalation of immigration enforcement actions, relying partly on information from Massachusetts. For example, in 2017, the Massachusetts Committee for Public Counsel Services Immigration Impact Unit received reports of close to 40 people who had been arrested by ICE agents while either inside courthouses, on the courthouse steps, or getting out of their cars to enter courthouses. Across the country, from Maine to Arizona, courthouse arrests have been documented against asylum seekers, agricultural workers, victims of domestic violence, and recipients of Deferred Action for Childhood Arrivals.
The passage of this resolution is especially timely given the recent Massachusetts Supreme Judicial Court decision in Lunn v. Commonwealth, which held that detention of an individual who would otherwise be released based on an “ICE detainer” is tantamount to arrest and not authorized under state law, and the debates following that ruling. As usual, we will continue tracking these issues, both locally and nationally, and keeping a close eye on all developments that may impact access to justice for Massachusetts residents.
Criminal Justice Resolutions
As you know, we’ve also been closely following Beacon Hill developments on criminal justice reform, including the recent release of the highly anticipated legislation based on recommendations from the Council of State Governments’ Justice Center Report, along with at least 150 other bills on matters related to sentencing, mandatory minimums, and CORI Reform to name a few. Many of the same and similar issues were also up for debate and approved in Resolutions passed at the Annual Meeting, including:
- Resolution 106:
- In this Resolution, the ABA urges Congress to increase the powers of the U.S. Department of Justice (DOJ) to ensure compliance with the Supreme Court decision in Gideon v. Wainwright, which, under the Sixth Amendment, guaranteed the right to counsel in most criminal cases. Specifically, the resolution calls for Congress to 1) enable the DOJ “to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel,” and 2) “enact legislation recognizing the right of private litigants…to obtain equitable relief in federal court for systemic violations of this right.”
- Resolution 10B:
- By passing Resolution 10B, the House reaffirmed its opposition to mandatory minimums, an opposition that has also long been a position of the BBA. The accompanying report outlined the ABA’s history of opposition to mandatory minimums and the reasoning for their opposition, including the detrimental limits on a judge’s flexibility to consider all relevant circumstances and the resulting disparate impacts on communities of color.
- Expungement Resolutions:
- The House also passed two expungement related policies, Resolution 112F and 112G. The former urges all levels of government “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.” The latter urges all levels of government to pass laws “allowing for the expungement of: (a) convictions, or (b) other statutory ordinances or violations where a court enters a finding of guilty, for actions performed in public spaces that are associated with homelessness.”
- Resolution 112C:
- This cash-bail related resolution urges federal, state, and local governments to adopt policies that favor release on recognizance and disallows the imposition of a financial condition of release that results in the pretrial detention of a defendant based solely on that defendant’s ability to pay. In addition, the Resolution calls for adoption of policies that “make bail and release determinations based upon individualized, evidence-based assessments that use objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, disability, sexual orientation or gender identification.”
Looking ahead, the BBA’s own Criminal Justice Reform Working Group, headed by BBA Secretary Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Collora LLP, is wrapping up its own exploration of criminal justice reform recommendations for the Commonwealth. We look forward to outlining those for you in the near future and keeping you posted on the continuing State House developments!
Legislative and Public Policy Manager
Boston Bar Association