Panel looks at access to justice, civil rights protections

The ABA House of Delegates will consider about three dozen resolutions at the ABA Midyear Meeting in Vancouver, B.C., including recommendations to expand access to the courts, limit use of mandatory sentences, encourage more attention to lawyer health and well-being, and improve civil rights protections for Americans.

The 601-member House, the associations policy-making body,  will meet Monday, Feb. 5 at the conclusion of the 2018 ABA Midyear Meeting, which begins Jan. 31.

Two resolutions encourage governmental bodies to give low-income residents more access to federal and state courts on civil matters.

Resolution 107 urges federal courts to adopt pro bono panels for civil litigants to make more free and low-cost attorneys and law clerks available to pro se litigants. In addition, the resolution calls for improving the availability of standardized forms and instructions on how to appear in court representing oneself.

Resolution 114 expands on ABA policy, first adopted in 2006, and urges that low-income persons in all proceedings that may result in a loss of liberty — regardless of whether the proceedings are criminal or civil or initiated or prosecuted by a government entity — be provided court-appointed counsel.

The U.S. Supreme Court in Gideon v. Wainwright in 1963 provided the right to counsel in criminal cases.

The resolution supports a concept known as “civil Gideon” and aims to close a perceived gap in the ABA’s existing policy by expanding its reach to “quasi-criminal” matters, such as contempt for failure to make child support payments, termination of parental rights, civil commitment and civil contempt.

Following ABA-related initiatives of the past two years, Resolution 105 calls for beefed-up efforts to reduce mental health and substance use disorders in the legal profession and improve the well-being of lawyers, judges and law students.

In 2016, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation released a landmark study showing substantial and widespread levels of problem drinking and other behavioral health problems among lawyers and law students.

Several ABA entities then joined other stakeholder groups to develop recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.

The report is designed to shift the culture of the legal profession to emphasize more well-being, and the resolution essentially calls on the various stakeholders in the legal profession to consider the recommendations.

Resolution 111 urges jurisdictions that impose capital punishment to prohibit execution of any individual who was 21 years old or younger at the time of the capital offense.

In 1983, the ABA became one of the first organizations to call for an end of using the death penalty on individuals under the age of 18, and in 1997 the ABA called for a suspension of executions until states and the federal government improved several aspects of their administration of capital punishment. But the ABA has taken no position on the death penalty per se.

Other resolutions include:

• Several that urge either reversal or limitations on policy initiatives or decisions by the U.S. Department of Justice (DOJ) or other agencies. Resolution 108E asks the Executive Branch to rescind its decision to end the Deferred Action for Childhood Arrivals (DACA) program, which affects several hundred thousand “Dreamers” — immigrants who were brought into this country illegally by their parents when they were children.

Resolution 108C urges DOJ to restore prosecutorial discretion in choosing the charges pursued against a defendant and to reserve mandatory minimum sentencing to only the most serious drug traffickers, in addition to prohibiting its use to secure plea agreements.

Resolution 116A supports an interpretation of a provision of Title VII of the Civil Rights Act of 1964 that prohibits sex discrimination in employment to include discrimination based on sexual orientation and gender identity. In October 2017, DOJ issued an interpretation that Title VII “does not prohibit discrimination based upon gender identity per se” after earlier filing an amicus brief in a case arguing similarly.

• Resolution 117, urging courts to recognize that individuals in the U.S. Armed Forces should not be discriminated against on the basis of sexual orientation or gender identity; and Resolution 108D, urging federal, state and others courts to extend Batson v. Kentucky, a U.S. Supreme Court decision in 1986 that barred preemptory challenges of jurors based on race, to cover similar challenges on the basis of sexual orientation or gender identity/expression.

• In the criminal justice area, Resolution 108A asks governments to both prohibit the use of solitary confinement for individuals with intellectual disability or serious mental illness; the elderly; women who are pregnant or suffering from pregnancy-related illnesses and others with medical conditions; and limit its use generally except in “exceptional cases as a measure of last resort” and typically not to exceed 15 consecutive days.

Resolution 108B urges legislatures to create a substantive right and procedures for individuals to challenge their convictions by demonstrating that forensic evidence used to obtain their conviction has subsequently been undermined or discredited.