ABA supports immigration reforms

As the Senate began debating immigration reform legislation last month, the ABA urged senators to “restore the rule of law to our broken immigration system.” Read more...

Sentencing Commission submits guidelines amendments

The U.S. Sentencing Commission May 21 submitted to Congress amendments to the U.S. Sentencing Guidelines that will go into effect November 1 if Congress does not object to the changes.Read more...

House passes student loan repayment legislation

The House passed bipartisan legislation May 15 to provide student loan repayment to law school graduates who take jobs as state or local criminal prosecutors or federal, state or local public defenders and agree to stay in those jobs for at least three years. Read more...

ABA seeks repeal of bankruptcy attorney liability provisions

The ABA urged Congress last month to repeal three key provisions in the two-year-old Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) that the association believes “dramatically increase the liability and administrative burdens of bankruptcy attorneys while denying effective legal representation to many Americans.” Read more...

Bill would enhance legal services to domestic violence victims

The ABA supported prompt enactment last month of legislation that would enhance access to legal services for victims of domestic violence through a nationwide referral system.Read more...

ABA opposes federal product and seller liability legislation

The ABA reiterated its opposition May 24 to enactment of broad federal product liability legislation and to less sweeping legislation that would limit a seller’s liability for sale of defective products. Read more...

ABA opposes sex offender regulations

The ABA expressed opposition April 30 to proposed interim Department of Justice (DOJ) regulations that would retroactively apply the Sex Offender Registration and Notification Act (SORNA) to juvenile offenders. Read more...

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WASHINGTON NEWS BRIEFS

DC VOTING RIGHTS: Following the House’s April 19 passage of legislation to provide voting representation in the House to residents of the District of Columbia, a May 23 Senate Judiciary Committee hearing focused on the constitutionality of the proposal.

INMATE TELEPHONE SERVICE: The ABA expressed support May 9 for H.R. 555, the Family Telephone Connection Protection Act, which would require the Federal Communications Commission (FCC) to prescribe rules regulating inmate telephone service rates.

PUBLIC PRIVATE PARTNERSHIPS: The ABA last month urged the Federal Highway Administration (FHWA) in the Department of Transportation (DOT) to use the 2000 ABA Model Procurement Code as a source for its own model code.

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ABA supports immigration reforms

As the Senate began debating immigration reform legislation last month, the ABA urged senators to “restore the rule of law to our broken immigration system.”

“We hope the Senate will pass a comprehensive bill that includes a fair and practical program to address our nation’s need for immigrant labor as well as the undocumented population living and working in the United States, ensures family unity, promotes national security, and provides crucial due process safeguards for immigrants and asylum seekers,” ABA Governmental Affairs Acting Director Denise A. Cardman wrote to all senators May 15.

The legislation being debated by the Senate is a bipartisan compromise package that has the support of the White House, but numerous amendments were proposed. Unsuccessful cloture votes caused leaders to pull the bill from the floor June 7 to be revisited at a later date.

Cardman said that several essential building blocks that are necessary for successful and effective reform include an earned adjustment program for undocumented individuals currently in the United States and a new temporary worker program to meet future labor needs. These programs, she said, must include needed labor protections and job portability for the workers, along with measures to ensure that U.S. workers will not be displaced. Most importantly, she added, the program must provide a path to permanent residence for those individuals who meet specified criteria for eligibility.

The ABA opposes provisions in the bill that would require workers to physically depart from the United States in order to earn residency and recommends excluding such requirements from the bill and permitting adjustment status within the United States for eligible applicants. The association also opposes certain provisions that would restrict family-based immigration, calling family unity a “core principle of our immigration system and the nation’s values.”

In the area of due process and judicial review, Cardman expressed the ABA’s strong support for restoring due process protections that have been scaled back in recent years. She emphasized, “Access to the courts is an essential feature of our system of government, and judicial review is important in protecting immigrants’ right and civil liberties and correcting improper execution of the immigration laws.”

Cardman also noted the ABA’s opposition to mandatory detention, recommending it be replaced with effective alternative means of ensuring appearance at court proceedings, such as supervised prehearing release, and bond based on risk of flight. For those immigrants who remain in immigration detention, the association supports an amendment to require the Department of Homeland Security to house immigration detainees near their attorneys, or in areas where immigration legal assistance is available.

In April, the ABA expressed strong support for most of the provisions in H.R. 1645, the Security Through Regularized Immigration and a Vibrant Economy Act (STRIVE Act), introduced March 22 by Rep. Luis Gutierrez (D-Ill.), Rep. Jeff Flake (R-Ariz.), and 70 cosponsors.

Cardman indicated, however, that both House and Senate bills should be amended to permit adjustment status for undocumented workers without requiring them to leave the United States and to bring the bills into compliance with two recent Supreme Court decisions placing limits on the allowable duration of detention [Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 545 U.S. ___ (2005)].

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Sentencing Commission submits guidelines amendments

The U.S. Sentencing Commission May 21 submitted to Congress amendments to the U.S. Sentencing Guidelines that will go into effect November 1 if Congress does not object to the changes.

The amendments address two issues – sentence reduction and cocaine sentencing - on which the ABA testified during the past two years at public hearings held by the commission.

Although current law, 18 U.S.C. § 3582(c) (1)(A)(i), gives courts authority, at any time upon motion of the Bureau of Prisons (BOP), to reduce a prisoner’s sentence to effectuate immediate release if it finds “extraordinary and compelling” reasons to justify the reduction, general policy issued by the Sentencing Commission does not include criteria to be applied or specific examples of what might constitute such reasons.

The new sentence-reduction language developed by the commission provides four examples of circumstances that, provided the defendant is not a danger to the safety of any other person or to the community, would constitute “extraordinary and compelling” reasons for reducing a prisoner’s sentence.

The reasons include:

• The defendant is suffering from a terminal illness.
• The defendant is suffering from a permanent physical or mental condition, or is experiencing deteriorating physical or mental health because of the aging process, that diminishes the ability of the defendant to provide self-care within the correctional facility and for which conventional treatment promises no substantial improvement.
• The death or incapacitation of the defendant’s only family member capable of caring for the defendant’s minor child or minor children.
• As determined by the director of BOP, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described above.

The ABA worked with the commission to craft the language of the amendment. Margaret Colgate Love, the consulting director of the ABA Commission on Effective Criminal Sanctions, appeared before the commission in March 2006 to urge that explicit policy guidance with specific examples be given in the area of reducing sentences for extraordinary and compelling reasons. George Washington University law professor Stephen A. Saltzburg reiterated the ABA’s policy in testimony submitted in March 2007.

Saltzburg also testified in November 2006 that the commission should recommend that Congress amend federal drug laws to eliminate the differences between sentences imposed for crack and powder cocaine offenses. Under current law enacted in 1988, it takes 100 times the amount of powder cocaine as crack to trigger the same five-year and ten-year mandatory sentences. In addition, the law triggers mandatory minimum sentences for very small quantities of crack – five grams for a mandatory five-year sentence and 500 grams for a ten-year sentence. Crack cocaine is one of only two drugs, he said, for which possession is a felony and is the only drug that triggers a mandatory sentence for possession.

The Sentencing Commission amendments take a step toward eliminating the disparity between powder and crack sentencing by modifying drug quantity thresholds in a way that will result in a reduction in the estimated average sentence of all crack cocaine offenses. The commission views the amendment, however, only as an interim solution to some of the problems associated with the current 100-1 drug-quantity ratio. A report submitted to Congress last month includes a number of recommendations for modifying the statutory penalties for crack cocaine offenses, and the commission indicated that it expected prompt and appropriate legislative action on the issue.

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House passes loan repayment legislation

The House passed bipartisan legislation May 15 to provide student loan repayment to law school graduates who take jobs as state or local criminal prosecutors or federal, state or local public defenders and agree to stay in those jobs for at least three years.

H.R. 916, sponsored by Rep. David Scott (D-Ga.) and 66 cosponsors, would direct the U.S. attorney general to establish the loan forgiveness program, which would provide up to $10,000 per year – to a maximum of $60,000. Such a program already exists for federal prosecutors.

“H.R. 916 represents an important tool for attracting and retaining talented lawyers who can develop a professionalism, competence and efficiency that comes with longer terms of service than many can currently afford,” according to ABA President Karen J. Mathis, who wrote to the House Judiciary Subcommittee on Crime, Counterterrorism and Homeland Security when the panel was considering the bill in April.

“This straightforward proposal, based on existing successful programs for federal employees, will also help mitigate high turnover rates in many offices caused by lawyers with substantial student debt leaving service because they are unable to afford the high monthly loan payments on their public service salaries,” Mathis explained.

Department of Education statistics reveal that 80 percent of students borrow money to obtain their degrees, with the average student carrying $20,000 in undergraduate debt before pursuing a career in law. For the class of 2006, the average private law school graduate incurred $83,181 in debt, while students at public institutions borrowed on average $54,509. The median starting salary for prosecutors and public defenders is $42,000.

Mathis maintained that the constitutional rights at stake in criminal law trials are of concern at all levels of government, making it “appropriate and necessary that the federal government share in easing the financial burdens shouldered by law graduates who pursue such laudable and necessary public service careers.”

The Senate Judiciary Committee in March approved similar legislation, S. 442, sponsored by Sen. Richard J. Durbin (D-Ill.) and 32 cosponsors (see April 2007 Letter).

The ABA has been encouraging enactment of loan repayment legislation since 1988. The legislation also is supported by the National District Attorneys Association, the National Association of Prosecutor Coordinators, the National Legal Aid and Defender Association, and the National Association of Criminal Defense Lawyers.

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ABA seeks repeal of bankruptcy attorney liability provisions

The ABA urged Congress last month to repeal three key provisions in the two-year-old Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) that the association believes “dramatically increase the liability and administrative burdens of bankruptcy attorneys while denying effective legal representation to many Americans.”

In a statement to the House Judiciary Subcommittee on Commercial and Administrative Law in connection with its May 1 hearing, ABA Governmental Affairs Acting Director Denise A. Cardman urged the panel to support a draft technical corrections bill that would reverse the attorney liability provisions in BAPCPA. Cardman also encouraged the panel to help enact legislation that would add a structure for partnership bankruptcy to the existing Bankruptcy Code.

Cardman said that the ABA supports narrow provisions in BAPCPA that allow direct appeals of final bankruptcy orders to the courts of appeals and permit bankruptcy attorneys to pay referral fees to nonprofit attorney referral programs, but other provisions imposing unfair burdens on debtor bankruptcy attorneys must be addressed. The provisions require bankruptcy attorneys to: certify the accuracy of the debtor’s bankruptcy schedules, under penalty of harsh court sanctions; certify the ability of the debtor to make future payments under reaffirmation agreements; and identify and advertise themselves as “debt relief agencies” and submit to a host of new intrusive regulations that interfere with the confidential attorney-client relationship.

Instead of unfairly punishing attorneys who provide legal services to debtors in bankruptcy, Cardman maintained, the ABA’s draft legislation would replace the harmful attorney liability provisions with new language instructing the courts to more vigorously enforce existing Bankruptcy Rule 9011 when misconduct by any attorney or party in the case is shown. The draft bill also would amend the definition of “debt relief agency” in BACPA to exclude attorneys - who already are licensed and heavily regulated by state courts and bar associations - while leaving the new regulations in the bill in place for the non-attorney bankruptcy petition preparers who are now largely unregulated.

In recommending a partnership bankruptcy structure for the Code, Cardman pointed out that although the intersection between partnerships and insolvency laws has created numerous complexities that have defied resolution, the Code lacks a comprehensive structure for addressing those complexities. As part of the proposed new structure, the ABA endorses an automatic stay that would inhibit post-bankruptcy suits against general partners for partnership liabilities. This in turn would encourage voluntary contributions by general partners, maximize the distribution of property of the estate, avoid unnecessary bankruptcy filings by partners, and discourage excessive litigation. The stay would remain in effect for 60 days after a bankruptcy filing, but would only apply to partners who agree to pay partnership debts.

To protect the legitimate rights of creditors, the ABA also recommends that the language include automatic stays of transfers outside the ordinary course of non-bankruptcy property by general partners of the filing partnership.

Testifying at the hearing, Henry J. Sommer, president of the National Association of Consumer Bankruptcy Attorneys, told the panel that BAPCPA’s new fees and added documentation requirements for both consumers and attorneys have resulted in an enormous increase in the costs and burdens of filing individual bankruptcy cases. “There is simply no reason, especially in cases of lower income debtors, that all of the documentation demanded by the 2005 amendments is necessary,” he concluded.

Subcommittee Chairwoman Linda T. Sanchez (D-Calif.) also expressed concerns over BAPCPA’s effect on consumers. In her view, the act has turned the system into a minefield of “gotcha’s,” and is “putting people through a bureaucratic maze when they are desperately working to regain their financial footing.”

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Bill would enhance legal services to domestic violence victims

The ABA supported prompt enactment last month of legislation that would enhance access to legal services for victims of domestic violence through a nationwide referral system.

S. 1515, introduced by Sens. Joseph R. Biden Jr. (D-Del.) and Arlen Specter (R-Pa.), would solicit lawyers and train and organize them into a central network to be known as the National Domestic Violence Volunteer Attorney Network. Statewide legal coordinators would manage legal services in their individual states, and the National Domestic Violence Hotline and Internet-based services would provide legal referrals.

“The ABA shares the belief expressed by other national organizations addressing access to justice for victims of domestic violence that there is a definite need to increase safe, affordable, accessible, high-quality legal services to victims,” ABA Governmental Affairs Acting Director Denise A. Cardman wrote in a May 25 letter to Biden and Specter.

Domestic violence, she said, is a well-documented epidemic in America that hurts millions of families each year, and a 2003 study by University of Arkansas professor Amy Farmer found that legal assistance is the most effective intervention for victims. The cost of this intervention, however, makes it inaccessible to many victims of family violence. Although approximately 170,000 low-income domestic violence victims are served by legal service providers each year, thousands of the estimated one million victims go without representation every day. At best, less than one out of five low-income victims ever has access to a lawyer.

Highlights of the bill include:

• mandating that the Government Accountability Office study the scope and quality of legal services available to victims of domestic violence across the country and issue a report to Congress within a year;
• creating a national Domestic Violence Volunteer Attorney Network Referral Project to be managed by the ABA Commission on Domestic Violence in partnership with other national domestic violence and pro bono organizations, including the National Domestic Violence Hotline;
• authorizing a pilot program to establish the National Attorney Network in five states, followed in two years by a national rollout; and
• establishing the Domestic Violence Legal Advisory Task Force to provide ongoing guidance regarding the network.

“This innovative bill builds on the best of American ideals – volunteerism, technology know-how, collaboration between the private and public sectors and our unwavering commitment to justice for all. I know that across the country there are lawyers who want to serve their community and this bill will pave the way,” according to Biden.

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ABA opposes federal product and seller liability legislation

The ABA reiterated its opposition May 24 to enactment of broad federal product liability legislation and to less sweeping legislation that would limit a seller’s liability for sale of defective products.

David C. Weiner, past chair of the ABA Section of Litigation, and Peter J. Neeson, chair of the ABA Section of Tort Trial and Insurance Practice, submitted a written statement on behalf of the ABA for the record of a May 17 House Small Business Committee oversight hearing on the impact of liability issues on small businesses. The committee, which does not have jurisdiction over liability legislation, held the hearings in light of possible introduction of bills that are similar to H.R. 2813, the Small Business Liability Reform Act introduced in the 108th Congress, and H.R. 5500, the Innocent Sellers Fairness Act introduced in the 109th Congress.

Weiner and Neeson explained that the ABA opposes broad federal product liability legislation because it “would deprive consumers of the sound guidance of the well-developed product liability laws of their individual states, as well as the flexibility to refine carefully the law through their state courts, and to make any necessary major improvements in the law through their state legislatures.”

They pointed out that state judiciaries have before them a wealth of past legal experience with which to guide deliberations for the fair and just resolution of disputes. “The result is a flexible, constantly developing body of law which balances the conflicting needs and demands of the present day as reflected in current disputes,” the said.

They also pointed out that constitutional challenges to legislation such as H.R. 2813 would be raised in various states courts, where interpretation of various provisions of the bill would differ as state courts tailor their decisions according to the situations in their individual states. The ABA opposes the product seller provisions in both bills because those provisions would remove the motivation of the only party with direct contact with the consumer - the seller - to ensure that the shelves in American businesses are stocked only with safe products. “Seller liability is an effective way of maintaining and improving product safety,” Weiner and Neeson said.

The statement also cited studies showing that there is no evidence that the number of tort cases in increasing, and recent statistics from the Federal Justice Statistics program reveal that the number of tort cases has fallen at the federal level.

Weiner and Neeson explained, however, that the association does support narrowly drawn federal legislation on compensation that addresses the issues of liability and damages with respect to claims arising out of occupational diseases with long latency periods, and also supports specific narrowly drafted federal legislation regarding asbestos claims. The association also supports federal legislation allocating product liability risks between the federal government and its contractors.

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ABA opposes sex offender regulations

The ABA expressed opposition April 30 to proposed interim Department of Justice (DOJ) regulations that would retroactively apply the Sex Offender Registration and Notification Act (SORNA) to juvenile offenders.

SORNA, part of the Adam Walsh Child Protection Act of 2006, was enacted to target sexual predators and strengthen the nationwide network of sex offender registration and notification programs. Under the act, juveniles who are prosecuted and convicted as adults of a sex offense are covered by SORNA and are treated as adult sex offenders. Juvenile offenders not prosecuted as adults are not required to register by SORNA unless the offender is 14 years of age or older at the time of the offense and has been adjudicated delinquent for an offense comparable to or more severe than “aggravated sexual abuse” or an attempt or conspiracy to commit such an offense.

In a letter to David J. Karp, senior counsel of the DOJ Office of Legal Policy, ABA Governmental Affairs Acting Director Denise A. Cardman emphasized that the Adam Walsh Child Protection Act is inconsistent with ABA juvenile justice policy. The ABA Juvenile Justice Standards set forth clear parameters for juvenile justice sanctions, she said, and recognize the “unique physical, psychological and social features of young persons.”

In addition, ABA policy limits the way juvenile records are compiled and disseminated and prohibits collateral consequences for delinquent behavior. The “lifetime registration” requirements of SORNA violate the ABA standards and are detrimental to both rehabilitation and crime prevention, Cardman wrote.

She urged the DOJ to reconsider whether the act should apply to juvenile offenders. In addition, she urged DOJ to draft regulations that do not further broaden the reach of the act, including rejecting retroactive application to juveniles. She also recommended that the regulations provide a reasonable method for low-risk offenders to petition to be removed from federal and state sex offender registries.

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COMPLETE WASHINGTON NEWS BRIEFS

DC VOTING RIGHTS: Following the House’s April 19 passage of legislation to provide voting representation in the House to residents of the District of Columbia, a May 23 Senate Judiciary Committee hearing focused on the constitutionality of the proposal. The legislation, H.R. 1905, would give the District of Columbia delegate in the House a full vote and also grant a new House seat to the state of Utah. Del. Eleanor Holmes Norton (D-D.C.) and Rep. Chris Cannon (R-Utah) both testified that there is no historical basis for concluding that the framers of the Constitution intended to disenfranchise residents of the nation’s capital and that the Constitution’s “District Clause” gives Congress the necessary authority to restore voting right to those residents. The ABA strongly supports enactment of the bill, which was introduced as S. 1257 in the Senate and has broad bipartisan support in Congress and among the general public. The Bush administration, however, has threatened to veto the legislation, maintaining that the District of Columbia is not a state and that, in the absence of a constitutional amendment, Congress is not permitted to grant congressional representation to the District through legislation.

INMATE TELEPHONE SERVICE: The ABA expressed support May 9 for H.R. 555, the Family Telephone Connection Protection Act, which would require the Federal Communications Commission (FCC) to prescribe rules regulating inmate telephone service rates. The legislation, sponsored by Rep. Bobby L. Rush (D-Ill.) and eight cosponsors, would assure a reasonable opportunity for prison and jail inmates to maintain telephonic communication with the free community and that telephone services in the correctional setting are offered with an appropriate range of options at the lowest possible rates. In a letter to Rush, ABA Governmental Affairs Acting Director Denise A. Cardman explained that telephone access can be a “critical component of a prisoner’s successful transition to a productive, law-abiding life after leaving prison” and can also contribute to safer prisons by reducing the number of disciplinary incidents. She noted, however, that many correctional systems engage in practices that make it difficult, if not impossible, for incarcerated people to use the telephones to contact family members and their lawyers. Such practices include permitting prisoners to make only collect calls, charging higher rates for prisoner-initiated calls, and requiring telephone service providers to block calls from prisoners to certain prohibited phone numbers for reasons of public safety and crime prevention. Under H.R. 555, the FCC would be required to set fair rates for interstate telephone calls made from prisons. The bill also would require prisons to use both collect-calling and debit-calling systems, which would let inmates use the money accumulated in computer-controlled accounts to place easily monitored calls to a limited group of telephone numbers. In addition, the bill would prohibit providers from paying kickbacks to prison systems and would require each prison system to allow more than one telephone company to enter the market. No action has been scheduled on the legislation.

PUBLIC PRIVATE PARTNERSHIPS: The ABA last month urged the Federal Highway Administration (FHWA) in the Department of Transportation (DOT) to use the 2000 ABA Model Procurement Code as a source for its own model code. According to comments submitted May 2 to FHWA and DOT, a substantial body of knowledge, law, regulations and court decisions form the basis for the principles in the ABA’s model code, and those principles provide a sound, stable base for procurement of Public Private Partnerships (PPPs). The comments, submitted by Michael A. Hordell, chair of the Section of Public Contract Law, and Edward J. Sullivan, chair of the Section of State and Local Governmental Law, said that model PPP legislation developed by the FHWA that was posted online for review and comment does not represent the policy of either FHWA or of the DOT and is materially different from the policies and processes set forth in the ABA model code. “While the model PPP legislation includes some useful ideas, many provisions in the draft do not constitute basic elements of a statutory procurement policy for state and local procurement of public private partnerships,” they said. “The draft should contain significantly more detailed language creating and protecting the competition environment for establishing PPPs, and evaluation and award processes for PPPs should be significantly more transparent prior to the competition....The absence of appropriate statutory and regulatory safeguards can produce substantial confusion in both the public and private sector, none of which is in the interest of federal, state or local government, any of the proposers, or the public,” Hordell and Sullivan stated. They pointed out that the best practices as reflected in the 2000 Model Procurement Code can be extremely helpful to FHWA in streamlining the review process with respect to PPPs, and they offered to assist the DOT, FHWA, and state and local governments in applying to PPPs the procurement models already in the ABA’s model code.