The American Bar Association has never carried much weight amongst criminal defense lawyers. Few join, and I can’t think of anyone who participate in the House of Delegates. I’m sure there are, but I just don’t know who. Maybe they keep it to themselves to avoid embarrassing questions, like “why?”, or “what the heck is the ABA doing?”
The latter question popped into my head when I read the breaking news from the ABA Journal, that the House of Delegates, in full swing yesterday. announced 9 criminal justice resolutions.
The ABA’s policy-making House of Delegates this morning passed a series of nine criminal justice resolutions. The measures had wide support from both prosecutors and the defense bar, according to speakers. The resolutions urge:
• Employers and educational institutions to ignore juvenile convictions that have been expunged.
• Legislatures to adopt simplified Miranda warnings for juveniles who are arrested.
• Legislatures to study whether some misdemeanor laws should carry civil fines rather than criminal penalties.
• Judges to conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclosure information under Brady v. Maryland and related case law.
• Governments to facilitate communication and contact between individuals in correctional custody and their families.
• Bar associations and law schools to provide prisoners with assistance in “avoiding undue consequences of arrest and conviction on their custodial and parental rights,” and Congress to allow Legal Services Corp.-funded organizations to provide family law counseling.
• The U.S. Attorney General to “assure that lawyers in the Department of Justice do not make decisions concerning investigations or proceedings based upon partisan political interests.” The measure is a response to the dismissal of several U.S. Attorneys during the Bush administration.
• Policy-makers adopt the ABA Criminal Justice Standards on the Treatment of Prisoners.
• Congress provide more than the $25 million appropriated so far for the John R. Justice Prosecutors and Defenders Incentive Act of 2008. The measure provides law school loan forgiveness for state and local prosecutors and state, local and federal public defenders who agree to serve for a minimum of three years. Federal prosecutors are already eligible for loan relief through existing federal programs.
The resolutions were all were adopted by overwhelming voice votes. No members of the House spoke in opposition to the measures.
But these nine resolutions are so lame, some indecipherable and others meaningless, that the only two reactions could be to laugh or cry. These are seriously bad.
For instance, the fourth resolution, calling for judges to hold a conference to advise parties of their “respective discovery obligations.” Respective? The defense has no Brady obligation, because we don’t prosecute. Do the delegates not know this? And the prosecution knows that its required to disclose pursuant to Brady. They don’t need to be reminded. They didn’t forget. They just don’t do it.
The failure to disclose is a huge problem. The ABA resolution is absurd.
And then there’s resolution five, calling on government to “facilitate” communication between prisoners and their families. What does “facilitate” mean? I’ve got no clue. I assume this is in response to states selling collect calling rights to phone companies so they can charge $27 a minute to prisoners. Or does it mean a payphone on every cellblock? Or allowing 5 calls a day? Or free telephone calls? Or what?
And don’t even get me started on the meaning of “undue consequences” in the sixth resolution.
The problem with the ABA has always been the same. It’s not the voice of real criminal lawyers. It’s the voice of committees, which by definition would turn thoroughbred horses into two hump camels, comprised of defense lawyers, prosecutors and judges. As the three groups have very distinct interests, all with camels in the race, the extent of overlap and hence agreement is minimal. The result is lame resolutions, either too vague or too weak to mean anything. Nine of them, not a one worth a damn.
Wait. I’m wrong. There is one that actually says something. The ninth, and final, resolution, which calls for $25 million to fund loan forgiveness for prosecutors and public defenders. This is an issue where the ABA actually has strong feelings. In fact, ABA President Carolyn B. Lamm has made students loans for law students her big issue.
“Because of the recession, a lot of students are facing debt they can’t pay,” said Lamm, a partner at White & Case in Washington, D.C. “We’ve been urging the White House, DOE [Department of Education] and Congress to persuade lenders to create the suspended payment period. This resolution will give that effort the full policy backing of the ABA.”In ABA-land, the recession only touches lawyers. She’s heard the painful cries of law students, unemployed or deferred, carrying debtloads of more than $100,000. Almost 45,000 are produced in the ABA accredited lawyer factories when there are only 30,000 jobs per year. So Lamm’s solution is take the tax dollars from people on Main Street, jobless and facing down foreclosure, and feeding them into the hungry mouths of poor, miserable unemployed law students. After all, with all the misery caused by economic circumstances, aren’t law students, hoping against hope to win the lottery by landing the Biglaw job, the most deserving?
Maybe someone will speak up and suggest that the answer is to stop accrediting new law schools to produce new lawyers for jobs that don’t exist and a society that doesn’t need more litigation. Then cut the seats in existing law schools in half. They cut the tuition by a third, as well as the time in school taking crucial classes like “Law and Modern Television Sitcoms.”
It’s not likely. If anyone was to speak up and say such a thing, they would be laughed at by the other delegates. This is the American Bar Association. This is what comes from a big group of important lawyers in the same room. Nonsense.
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Amen, Mr. Greenfield! I only wish you weren’t preaching to the choir.
I sometimes get a stray stuffed shirt wandering aimlessly over here. You never know when Carolyn Lamm might show up. It could happen. And thanks.
The U.S. Attorney General to “assure that lawyers in the Department of Justice do not make decisions concerning investigations or proceedings based upon partisan political interests.”
Assurance is easy and toothless. If they’d only written “ensure”. But that would be difficult.
I think criticism is fine, but for an organization that is unrivaled in representation by prosecutors, defenders, judges, academicians, policy wonks, sociologists, correctional officials, law enforcement, etc., and on the federal state and local levels, not to mention tribal and military courts, it is not insignificant when the ABA comes out with a consensus position no matter how vanilla. Don’t just limit the review to what passed at a particular meeting, either. There is a huge body of work and many times — as was true in Orlando — the positions seek to augment what is already on the books. The most valuable part about these positions is often not the final statement, because those can change with the times. The true value is the discussions which leads to it — an open and national discussion of those who care (and do) participate. The ABA is actually slanted towards the defense bar in many regards, although it has done a better job of being more inclusive of the views of all officers of the courts. Despite this, many of the leaders of NACDL and NLADA are often also active in the ABA leadership. So criticize some of the less-controversial positions that are often pre-negotiated, circulated and vetted prior to the ABA House Floor. OK. But sometimes policy positions help define the aspiration for where discussions should begin, rather than suggest some limitation as to where they should end.