ABA considering proposal to lessen financial bar for some pre-trial detentions

The American Bar Association House of Delegates, which determines association-wide policy, will take up several proposed resolutions related to criminal justice reform at the upcoming ABA Annual Meeting, including one that seeks to lessen the link between pretrial detention and a defendant’s ability to pay.

The House — made up of 601 delegates from state, local and other bar associations and legal groups from across the country — meets Aug. 14-15 at the New York Hilton Midtown. Also on tap are wide-ranging resolutions that would urge state licensing agencies for lawyers not to deny bar admissions solely based on immigration status; foster civic and quality education of students; and request governments to keep guns away from some previously convicted violent offenders.

In Resolution 12C, the House would urge governments to adopt pretrial detention policies and procedures that favor release on personal recognizance or unsecured bonds and to permit cash bonds or secured bonds only upon a court finding that such financial conditions will ensure appearance. The ABA has recently filed several amicus briefs in immigration and misdemeanor cases, asserting that pretrial detention should not occur due solely to an inability to pay. The new resolution complements other ABA policies and criminal justice standards that seek to de-link a defendant’s financial status and bail.

Similarly, Resolution 112D asks governments to cease the use of bails and bonds in the juvenile justice system, and to utilize objective criteria that has no discriminatory or disparate impact. Resolution 112E calls for policies prohibiting the use of solitary confinement of children and youth under the age of 18.

Two gun resolutions are proposed. Resolution 118A asks that Congress expand some gun restrictions in the Gun Control Act of 1968 to include persons who have been previously convicted of a misdemeanor crime of violence that was motivated by hate or bias because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or diversity or disability of any person. And Resolution 118B urges governments to enact statutes, rules and regulations authorizing courts to issue gun violence restraining orders when appropriate.

Other resolutions cover:

• Educational issues: The ABA Commission on the Lawyer’s Role in Assuring Every Child’s Right to a High-Quality Education, an initiative of ABA President Linda A. Klein, proposed three education-related resolutions, also co-sponsored by other ABA entities. Resolution 117A urges governments to adopt and implement policies to provide access to and adequate funding for elementary and secondary public schools. Resolution 117B calls for governments to instill in all students a sense of personal responsibility and provide curricula on how to become educated voters. And Resolution 117C endorses two prior ABA reports that provide a framework to improve educational access, stability and success for court-involved youth.

• Privacy: Under Resolution 111, the Privacy Law program of the International Association of Privacy Professionals of Portsmouth, N.H., would be accredited for a five-year term as a designated specialty certification program for lawyers. With cybersecurity issues increasing both with corporate clients and law firms, privacy law has become a growing trend in the legal profession.

• Immigration: Resolution 115 supports the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings in U.S. immigration courts and before the Board of Immigration Appeals, as well as to advise these persons, if necessary, of their rights to appeal to the federal Circuit Courts of Appeals.

• Federal courts: Resolution 104 reaffirms opposition to restructuring the U.S. Court of Appeals for the Ninth Circuit. President Trump, among others, has suggested that the Ninth Circuit, one of 13 in the federal appellate system, be broken up. Under Article III of the U.S Constitution, Congress has the power to configure the judicial system.

No proposal constitutes association policy unless and until the House of Delegates adopts it. Some offerings may be withdrawn while other measures may be submitted. Any measure can be amended until it is taken to a vote.