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NATIONAL CONFERENCE OF SPECIALIZED

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									2007 Midyear Meeting
  AGENDA BOOK
 Hyatt Regency Hotel
   Miami, Florida
 February 8-11, 2007
                        NATIONAL CONFERENCE OF SPECIALIZED
                                    COURT JUDGES
                               2007, MIDYEAR MEETING
                                   MIAMI, FLORIDA
                                 FEBRUARY 8-11, 2007



                                            AGENDA

                               ITEM                  REPORTER           TAB

I.     Welcome, Call to Order and Introductions      Jim Riehl

II.    Midyear Meeting                               Jim Riehl          A
       A Mental Health Court Outreach                Mark Chow

III. Approval of Annual Meeting Minutes
                                                                         B
       Annual Meeting August 4-5, 2006               Margarita Bernal
       Annual Meeting August 6, 2006                 Matt Martin

IV.    Chair’s Report                                Jim Riehl

V.      2007 San Francisco Annual Meeting            Margarita Bernal
        a. Education Program                         Linda Murnane
        b. Co-sponsorships
        c. Social Events / Awards

VI.    Budget and Finance Status                     Staff

VII.    Policies on Spending Authority               Jim Riehl           C
        Policies on Contributions

VII.    Membership Report                            Margarita Bernal

IX.     Online Membership Directory                  Jim Riehl
                                                     Staff

X.      Committee on Traffic Report                  Earl Penrod        D

XI.     Publications Report                          Mike Pietruszka     E
                                                     George Perez

XII. Tribal Courts Council                           Matt Martin         F

XIII. House of Delegates Report                      Robert Pirraglia   G
XIV. NHTSA Update                                   Jim Riehl       H
      NCSCJ Judicial Fellow                         Kent Lawrence
      JOL Northwest Region                          Judith Eiler
      JOL Southeast Region                          Karl Grube
      JOL Western Region                            Larry Sage

XV. Annual Meeting Awards                           John Rosson
      Education Award
      McMahon Award
      Flaschner Award

XVI. Other Committee Reports
       Judicial Ethics Committee                    Karl Grube      I

XVII. Judicial Division/Justice Center                              J
       Judicial Division Director’s Report
       Judicial Division Budget Summary Chart
       Judicial Division Record Schedule 2007-2008
       Judicial Clerkship Program
       Standing Committee on Minorities in the Judiciary Report
       2007 Directory of Minority Judges Form
       Judicial Outreach Network Report
       Traffic Court Program Report
       Least Understood Branch
       John Marshall Award Call for Nominations
       2007/08 Presidential Appointment Process Memo
       “Eye of the Storm: Deciding Controversial Cases”
       “The Impact of Criminal and Civil Appeals on Each Other”
       Justice Center Save the Dates
       ABA Day Schedule
       Judicial Division 2007 Annual Meeting Schedule (tentative)
       Judicial Division Bylaws

XVIII.   Co-sponsorship Request for JD Council Consideration        K
          Commission on Homelessness & Poverty
                       Recommendation
                       Report
                       General Information
                       Executive Summary
          Prison Litigation Reform Act
                       Recommendation
                       Report


          Commission on Effective Criminal Sanctions
               Report on Alternatives to Incarceration and Conviction
                       Recommendation
                       Report
               Report on Improvements in Probation and Parole
               Supervision
                       Recommendation
                       Report

               Report on Employment and Licensure of Persons with a Criminal Record
                       Recommendation
                       Report
               Report on Access to and Use of Criminal History Information for Non-
               Law Enforcement Purposes
                       Recommendation
                       Report
               Report on Representation Relating to Collateral Consequences
                       Recommendation
                       Report
               Report on Training in the Exercise of Discretion
                       Recommendation
                       Report

XIX     ABA
          Model Code                                                         L




XX. New Business

XXI. Roster                                                                 M

XXII. Bylaws                                                                N

XXIII. Adjournment
TAB A




    1
                                       2007 ABA Midyear Meeting Miami, FL
                                                 Justice Center
                           Judicial Division * Standing Committee on Judicial Independence
                      Standing Committee on Federal Judicial Improvements * Coalition for Justice
                     All meetings and programs will take place at the Hyatt Regency unless otherwise noted.
                            ** Per ABA Policy, all meetings are considered open to all attendees**

                                             Schedule as of January 16, 2007


Wednesday, February 7
8:30am – 12:30pm      SC on Minorities Meeting                                       Orchid A, Terrace Lvl.
12:00pm – 5:00pm      Leadership Institute                                           Gardenia A/B, Terrace Lvl.
1:00pm – 3:00pm       SC on Minorities School Outreach                               Miami Dade County Public School

Thursday, February 8
8:00am – 11:00am        Tribal Courts Council Meeting                           President’s Room, 3rd Fl.
10:00am – 11:30am       Judicial Outreach Network Committee Meeting             Pearson II, 3rd Fl.
11:45am – 1:00pm        Judicial Clerkship Program (judge participation)        Riverfront Hall, Lobby Lvl.
12:00pm – 5:00pm        Office                                                  Riverfront Hall North (13), Lobby Lvl.
2:00pm – 5:00pm         Division and Conference Committee Meetings              Merrick I, 3rd Fl.
                        (2-3) SCJ Education Cte.                (2-3) STJ Jury Management Cte.
                        (2-3) JD Membership
                        (3-4) JD Bench/Bar Bankruptcy Council
                        (4-5) LC Court Accessibility Cte.       (4-5) JD Publications Cte.
                        (4-5) JD Programs Cte.
2:45pm – 3:45pm         Judicial Clerkship Program (judge participation)        Riverfront Hall, Lobby Lvl.
4:00pm – 5:00pm         JD Strategic Communications Committee                   President’s Room, 3rd Fl.
5:30pm – 6:30pm         Lawyers Conference New Member Reception                 Please see JD staff for location
6:30pm – 8:00pm         Welcome Reception                                       Jasmine, Terrace Lvl.

Friday, February 9
7:30am - 10:00am        Office                                                       Riverfront Hall North (13), Lobby Lvl.
7:30am – 8:45am         Welcome Breakfast                                            Orchid, Terrace Lvl.
                        Cosponsored by CourtCall
8:45am – 9:30am         Judicial Clerkship Program (judge participation)             Riverfront Hall, Lobby Lvl.
9:00am – 11:00am        LUB Training                                                 Tequesta, 4th Fl.
9:30am – 2:00pm         CASA Executive Board                                         San Marco Island, 3rd Fl
                                                                                     Marriott Biscayne Bay
9:45am – 12:00pm        Executive Committee Meeting
                                 Administrative Law Judges                           Brickell South, Terrace Lvl.
                                 Federal Trial Judges                                Gardenia A/B, Terrace Lvl.
                                 Specialized Court Judges                            Brickell North, Terrace Lvl.
                                 Lawyers Conference                                  Brickell Center, Terrace Lvl.
9:45am – 1:00pm         Executive Committee Meetings
                                 State Trial Judges                                  Tuttle South, Terrace Lvl.
12:00pm – 12:30pm       JD Nominating Committee                                      Azalea A, Terrace Lvl.
1:00pm – 3:00pm         JD LUB Training                                              Brickell Center/South, Terrace Lvl.
2:00pm – 4:30pm         Coalition for Justice Meeting                                Gardenia A/B, Terrace Lvl.
2:45pm – 3:45pm         Judicial Clerkship Program (judge participation)             Riverfront Hall, Lobby Lvl.



                                                                                                                        2
4:00pm – 5:00pm         Division and Conference Committee Meetings                 Hibiscus A, Terrace Lvl.
                        ALJ Nominating         LC Nominating
                        STJ Nominating         SCJ Nominating (4:15pm)
                        FTJ Nominating         STJ 50th Ann Cte.

Friday, February 9 (continued)
4:30pm – 6:00pm        Justice Center Coordinating Council Meeting                 Orchid A, Terrace Lvl.
7:00pm – 10:00pm       SC on Judicial Independence and
                       SC on Federal Judicial Improvements Joint Dinner            The Forge, 432 41st Street

Saturday, February 10
7:30am – 10:00am        Office                                                  Riverfront Hall North (13), Lobby Lvl.
7:30am – 8:30am         Joint Committee of the Sr. Lawyers and JD               Pearson II, 3rd Fl.
7:30am – 9:00am         State Trial Judges Executive Committee Meeting          Foster I, 3rd Lvl.
8:00am – 9:00am         Executive Committee Meetings
                                 Administrative Law Judges                      Hibiscus B, Terrace Lvl.
                                 Federal Trial Judges                           Pearson I, 3rd Fl.
                                 Specialized Court Judges                       Orchid C, Terrace Lvl.
                                 Lawyers Conference                             Johnson I, 3rd Fl.
8:30am – 3:00pm         Standing Committee on Judicial Independence             Foster II, 3rd Fl.
9:00am – 10:00am        JD Traffic Court Committee                              Board Room, 3rd Fl.
9:00am – 11:00am        Division and Conference Committee Meetings              CANCELLED – NO SPACE
9:00am – 11:15am        Judicial Clerkship Program (judge participation)        Riverfront Hall, Lobby Lvl.
9:00am – 12:00pm        Judges’ Journal Editorial Board                         Johnson II, 3rd Fl
12:00pm – 2:00pm        Spirit of Excellence Luncheon
2:00pm – 4:00pm         PROGRAM                                                 Miami Lecture Hall, 3rd Fl.
                        Eye of the Storm: Deciding Controversial Cases
2:00pm – 4:30pm         American Bar Fellows Research Presentation              Hotel Intercontinental, Theater
2:00pm – 5:30pm         Judicial Division Council Meeting/Business Meeting      Hibiscus B, Terrace Lvl.
4:00pm – 5:30pm         PROGRAM                                                 Miami Lecture Hall, 3rd Fl.
                        The Impact of Criminal and Civil Appeals on Each Other
6:30pm – 9:00pm         Judicial Division Dinner (Steve Zack’s House – ticketed $70.00 pp)
                        Transportation will be provided

Sunday, February 11
7:30am – 10:00am        Office
7:30am – 9:00am         Joint Breakfast (LC, FTJ, SCFJI)                           Hibiscus A, Terrace Lvl.
7:30am – 12:00pm        Appellate Judges Executive Committee                       Stanford, 3rd Fl.
8:00am – 10:00am        Executive Committee Meetings
                                Administrative Law Judges                          Orchid B, Terrace Lvl.
                                Specialized Court Judges                           Ibis, 3rd Fl.
                                State Trial Judges                                 Merrick I, 3rd Fl.
9:00am – 11:00am        Executive Committee Meetings
                                Lawyers Conference                                 Pearson I, 3rd Fl.
                                Federal Trial Judges                               Pearson II, 3rd Fl.
9:00am – 11:00am        Jury Commission Meeting                                    President’s Room, 3rd Fl
9:00am – 12:00pm        SC on Federal Judicial Improvements                        Gardenia A/B, Terrace Lvl.
3:30pm - 5:00pm         Division House of Delegates Meeting                        Orchid B, Terrace Lvl.




                                                                                                                   3
Miami Mental Health Courts Tour


The Miami Mental Health Courts Tour is scheduled for Thursday, February 8, 2007 from 10:00
AM - 12:30 PM at the Midyear Meeting.

Attendees will tour the mental health floors of the county jail and also view the target population
and conditions program participants experience in the jail prior to participating in the mental
health program. The tour will include a meeting with Judge Steve Liefman, Head of the Mental
Health Program. During the meeting, ABA members will learn about the court's current mental
health jail diversion program and local efforts to address the problem of persons with mental
illnesses in the criminal justice system.


Tour Details:

Richard E. Gerstein Justice Building
1351 NW 12th Street, Room 617, 6th Floor
Miami, FL 33125



Tentative Schedule:

I. 10:00 AM - 11:00 AM Meet with Judge Steve Leifman and Mental Health
Program Representatives

II. 11:00 AM - 11:45 AM Tour of Miami-Dade County Jail Mental Health floors

III. 11:45 AM - 12:30 PM LUNCH




                                                                                                  4
TAB B




    5
                                2006ABA Annual Meeting
                     National Conference of Specialized Court Judges
                              Executive Committee Meeting
                              Friday August 4, 2006 Minutes



9:05am Meeting is called to order by Mike Witte, Chair,

 Members present: Mike Pietruszka, Member at Large, Linda Strite-Murnane, Vice Chair, Peter
Evans, 5th District, Karl B Grube, Traffic Committee Chair, Matt Martin, At Large, Tom Warren,9th
Dist. Bob Pirraglia, House of Delegate Representative, George Perez, member St Paul Minn, Doug
Saloom, member Peter Evans, Dist 5,Roger Drew, At Large, Larry Sage, Dist 8,Pamila J. Brown, Dist
4, Earl G Penrod, Member, Sandra Thompson, member, Eileen Kato, past Chair, Steve Smith,
member, Elizabeth Finn, member, Judith R. Eiler, member, Benjamin Zvenia, member, Mark C Chow,
member, J. Michael Kavanaugh, member, NHSTA fellow, Brian Chodrow, member, NHSTA , Karl
Grube, past chair-member, Belinda Edwards, member, Atlanta, P. Gary Ferrero, member, Murray
Utah, Jim Riehl, Chair-Elect, John R. Rosson, Jr Ex Committee, and 4th Dist. Larry Sage 8th
Dist/Traffic Committee, Pamila J Brown, 2nd Dist, Margarita Bernal, Secretary.

Announcements: Mike Witte announced various meetings and programs including the discussion of
the Model Code of Judicial Conduct and introduced Mark Harris, chair of the

 Commission on the Model Code of Judicial Conduct: final report of the code should be prepared
and finished for approval and vote in the near future. Mark estimated that by October 2006 the ABA
website should have the final draft, available for comment and submission to the House of Delegates
for action at the Miami Mid-Winter meeting in Feb 2007. Mark asked for feedback and input as
quickly as possible in order to respond to the issues raised prior to the mid-winter meeting. Mark
Harris specifically asked for feedback in the area of Canon 5 regarding political activities by judges in
light of the ruling in Minnesota v White. Mark excused himself and the conference for the next item
on our agenda.

Mike Witte asked for introduction of the First Time Attendees: Gary Ferrero, Utah, Belinda Edwards,
Atlanta, Ellie Finn, Glendale, Arizona, Mark Chow, Seattle, Washington. Mike welcomed the new
first time attendees and urged them to become active in our conference.

Chair elect Jim Riehl, announces a new committee on Therapeutic Courts, which Judge Mark Chow,
Seattle Washington, will chair effective August 6, 2006

III. Annual Report of Chair

Mike Witte referred the group to Tab 1-1 highlight of the activities of the conference: the new buzz
words will help create a “Fair & Impartial Judiciary.” Mike also introduces and congratulates Rebecca
(King) DeSalvo who is the new assistant director.




                                                                                                       6
Page 2, ABA Minutes Annual Meeting
August 4, 2006.
Executive Committee Meeting Specialized Courts

   1. Budget Report: Mike Witte mentions the budget request regarding the NHTSA program on
   Wednesday, August 2, 2006, each faculty participant is eligible for a $200 per diem from the Traffic
   revenue fund, including the expenses of staff person and the indispensable Gilda Fairley

All funds were paid from the NHTSA revenue program fund, and not the general budget from ABA.
Mike referred to the previous minutes regarding the total of fund expended

NHTSA Programs: Mike announces the upcoming programs for the following months: Sept 2006, a
program has been confirmed for Arkansas, Indiana in October and North Dakota in November. Each
program will generate approximately $5000 in funds for our conference. Faculty expenses, per diem and
costs will be covered but the host jurisdiction will cover any other overhead for the programs.

Larry Sage moves to approve the budget expenses, as outlined, Ernestine Gray, seconds. Motion carries
unanimously.

Spending Authority Proposals: Mike Pietruszka announces the three proposals, which are included in
the minutes: Conference chair can approve up to $1000; Approval by executive committee up to $5000.
Any amount in excess of $5000 to be voted on by the Executive Committee. Ernestine Gray moves to
approve the proposals. Pamila Brown, seconds. Discussion follows. Linda Strite Murnane describes that
the specific language allows flexibility and formalizes the previous actions by previous chairs. Jim Riehl
discusses the reasoning behind the policy for limitations on the expenditure of funds. Bob Pirraligia
suggests that the amount listed is appropriate and suggests that given the history of the conference,
suggested it be limited to a set amount. Mike Petriszka clarifies the language, Doug Saloom supports the
motion as it is separate from the traffic funds. Ernestine Gray modifies her Motion re spending authority
for specific funds generated only by the traffic programs. Ernestine suggests that those funds only be used
for the traffic court outreach program and for education for judges in traffic related issues. Pamila accepts
modification. Peter Evans clarifies that the traffic related and judicial education are overlapping.
Amended Motion is voted upon: Motion carries Tom Warren requests that Motion to Amend is voted
first, then the actual Motion should be voted upon. Motion to Amend: passes. Substantive motion to
accept spending proposals as outlined: Motion passes unanimously.

Contribution Policy: Discussion follows: Linda suggests that the policy was based on our priorities:
commitment to diversity, traffic court and related judicial outreach. Tom Warren moves to adopt the
charitable contribution policy as submitted, Roger Drew seconds. Motion passes unanimously.

Linda Strite-Murname announces information regarding the evening sunset cruise dinner and thanks the
group for the presentation for the Courage to Live Program. Linda specifically cites Roger Drew as
critical to the success of getting the programs on military bass. Gilda Fairley was incredible and
indispensable to the success of the coordination of the entire program. Linda thank Karl Grube Bob
Pirraglia and Mike Witte for their leadership, especially Mike for allow the program to go forward and
giving Linda the faith and freedom to go forward with the program




                                                                                                           7
Page 3 ABA Annual Meeting
August 4, 2006
Specialized Courts Conference Annual Meeting

Linda announces the CLE programs sponsored by the judicial division: Roscoe Pond Legacy and the
“What do Judges Do “Panel, Judicial Independence. Mike Witte also recognizes Linda for her exhaustive
work in the “Courage to Live “Program

A brief break for the fabulous prizes

Mike reconvenes group: Larry Sage moves to approve the minutes for the Annual Meeting in August
2005. Ernestine Gray seconds. Motion carries. Larry Sage moves to accept the minutes for the February
2006 Mid Winter meeting, Mike Petriszka seconds. Motion carries unanimously.

Mike introduces Bob Pirraligia to discuss the House of Delegates Resolutions today in order to get the
information out to the membership .

Resolution 101 : Tax Court Resolution. Bob moves to support. Peter Evans moves , Pamila Brown
seconds. Motion carries

Resolution 102: Encourages Lawyers and Judges to be personally and actively engaged in education of
the community and schools to encourage civil education, the importance of the Rule of La and Separation
of Power. Mike Petriszka moves to support. Pamila Brown seconds. Motion carries.

Resolution 103 : Withdrawn

Resolution 109: Urges policy makers to require health care providers to support funding for substance
abuse and alcohol abuse: Bob recommends passage. Mike Petriszka moves, Peter Evans seconds. Motion
passes.

Resolution 110 Commission on Domestic Violence: Urges DV protection to extending to people who are
dating. ( Supports the federal legislation) Motion to support by Tom Warren. Second by Mike Pietruszka.
Jim Riehl urges support. Ellie Finn urges passages , as it mirrors Federal legislation which is critical for
acceptance of federal VOWA funding.

Resolution 112 A Civil Legal Counsel proposal: shorthand term: Right to counsel for civil actions:
Executive committee votes 9 to 2 to support.

Resolution 112B: Civil legal aid for any person has a right to lawyer in civil cases at taxpayer expense:
Roger Drew moves not to Support. Tom Warren second. Bob believes it will pass but problem areas in
landlord tenant cases, custody, prisoners, etc. Motion is withdrawn by Roger.
New Motion to Oppose: by Roger Drew, second by Tom Warren. Discussion. Ernestine Gray believes it
would not be appropriate for judges to oppose a resolution that urges appointment of counsel for
indigents. Motion to Oppose Resolution: Vote: majority with 3 nays. Matt Martin suggests a Motion to
Instruct Delegation to oppose but to leave discretion. Second by John

Reason. Motion carries.




                                                                                                          8
Page 4 ABA Annual Meeting
August 4, 2006
Specialized Courts Conference Annual Meeting

Resolution 121A-C : Tabled

Resolution 107 : DNA Resolution requires a hearing , notice, right to counsel, etc right to request a
judicial proceeding before a DNA sample is taken. Discussion follows. Motion to Abstain on the
substance of the motion since it may come before the members of the conference as a contested matter by
Jim Riehl, Second by Mike Pietruszka. Motion carries. Bob is instructed to express our concerns. Motion
carries unanimously.

Mike Witte presents gifts to the Executive committee ( fabulous beach towels with ABA logo)

11: 30 am : Mike accepts Motion to Recess meeting until Saturday morning. Meeting is recessed.




                                                                                                      9
                                      2006ABA Annual Meeting
                           National Conference of Specialized Court Judges
                                    Executive Committee Meeting
                                  Saturday, August 5, 2006 Minutes


 9:12 am Meeting is called to order by Mike Witte, Chair,

Members present: Mike Pietruszka, Member at Large, Linda Strite-Murname, Vice Chair, Peter Evans,
5th District, Karl B Grube, Traffic Committee Chair, Matt Martin, At Large, Tom Warren,9th Dist. Bob
Pirraglia, House of Delegate Representative, George Perez, member St Paul Minn, Doug Saloom, member
Peter Evans, Dist 5, Roger Drew, At Large, Larry Sage, Dist 8, Pamila J. Brown, Dist 4, Earl G Penrod,
Member, Sandra Thompson, member, Mark C Chow, Seattle member, Steve Smith, member, Elizabeth
Finn, member, Judith R. Eiler NHSTA fellow, Benjamin Zvenia, member, Mark C Chow, members J.
Michael Kavanaugh, member, NHSTA fellow, Brian Chodrow member ,NHSTA , Karl Grube, past chair-
member, Belinda Edwards, member, Atlanta, P. Gary Ferrero, member, Murray Utah, Jim Riehl, Chair-
Elect, John R. Rosson, Jr Ex Committee, and 4th Dist. Larry Sage 8th Dist/Traffic Committee, Pamila J
Brown, 2nd Dist, Margarita Bernal, Secretary.

Announcements: Jody Levine, Chair, Judicial Division comes to thank our conference for our working on
the “Court to Live.” Jody is appreciative of the work we did for the children during our outreach to the
military installations. Jody also thanked the group for the work especially for the community at large and
specifically the military community.

Jody responds to the concerns that the ABA media process did not work enough to insure that our
community outreach was sufficiently covered by the local media. She agrees to take our concerns to the JD
council. Mike thanks Jody for her support of our conference.

Judge Sophia Hall, reports on the preparation for the Celebration of Trial Judges, now planned to take
place at the annual meeting in New York, set for August 2008. The process has begun to celebrate the work
of the trial judges:, where “our customers” see us in our court. She urged our conference to get involved
and help get information out to the community at large, in response to many recent attacks on the judiciary.
Sophia announces that a survey has been developed to help plan the work of the committee and to help
create the presentation. She is working with our Mike Pietruszka in providing a better presentation in 2008
on behalf of all trial judges, information will appear on our ABA website and will be sent to all judicial
members. Sophia urges our input with the surveys and to circulate the surveys to our colleagues at home.

II NHTSA Report: Brian Chadrow and Mike Kavanaugh, judicial fellow, gives his final report as
for his two year fellowship. Mike reports that 2 years ago DUI courts numbered less than 200; now the
number of DUI specialty courts is 300 plus. Specifically Mike highlights DUI/Drug Courts and tells the
group that the emphasis is to use the drug court model. Mike also reports that the NHTSA model has been
replicated at the National Judicial College in Reno, Nevada with great success. Mike also mentions the
partnership with NHTSA and the National Drug Court group, which has flourish greatly in the last 2 years.
The new teams have created more opportunities for working together.




                                                                                                         10
Page 2 August 5, 2006
Annual Meeting Minutes



Mike also mentioned that his involvement in our the “Courage to Live” here in Honolulu at Radiford High
School was especially special since his wife attend this high school and was able to be here with him for
the presentation. Mike also announces the creation of a new program “Back on Track” for college age
students, which applies the “Courage to Live” program to a new group. Mike urges our judges to take a
look at the program to see if we can apply it to our jurisdictions.

Brian Chadrow: thanks the group for the Courage to Live program, that NHSTA is very appreciative of
our work and will be placing more information on the new DUI campaign: Drunk Driver, Over the Limit,
Under Arrest” starting on Aug 16th through Labor Day, 2006. The new tag line, for NHSTA will be
“Buzzed Driving is Drunk Driving “which will continue as part of the new outreach campaign by local law
enforcement. Brian concludes his presentation by giving the NHSTA service Judicial Fellow Award 2004-
2006 to Mike Kavanaugh.

Judicial Division Chair-Elect: Leslie Miller drops by and reports that the Judicial Division is especially
proud of the work of our conference this week with the Courage to Live Program at the local schools. She
is proud that we brought the message to the community and indicates that her priorities for the upcoming
year include 1.) Judges Network Project: Youth @ Risk: Ernestine Gray is chairing the committee and is
representing our conference. This committee will develop programs which will include outreach, and
Leslie requests our input and interest. 2.) Least Understood Branch: This initiative will include a booklet
and outreach information will be created to attempt to respond to the attacks on the judiciary. Plans call for
its distribution to the entire Judicial Division. Leslie indicates that the booklet will help us respond to the
public campaign against judges. 3.) Diversity Issue: A program is being developed for the San Francisco
Annual Meeting in 2007, which will be geared to minority attorneys who desire to become appointed or
elected judges. Leslie mentioned a large program with break out groups, mentoring and pairing of minority
lawyers with ABA judges who wish to help the young lawyers go through and understand the process for
judgeships. The hope and goal of the program is to encourage and increase the membership of minority
judges. 4.) Membership: Bill Carpenter will be the chair and will look at creative ways to enhance and
increase membership.

Leslie address why the ABA media folks did not arrive in time and respond to our outreach program to
insure that local media coverage for the outreach program.

NHSTA reports, continued Judith Eller and Karl Grube submitted their reports as part of our minutes and
handouts given to the group. Judy mentioned the importance of publicity on the issue of DUI courts in her
jurisdiction and the importance of working with local media.

Karl Grube reports that the National Judicial College staff attorney, Maryann Aguirre was the author and
creator of the “Courage to Live” program. Karl mentioned that in his 20 years at the NJC , that the
Courage to Live program was one of the most significant and successful outreach programs and has a
significant impact on the entire community by a single ABA program.




                                                                                                            11
Page 3 Annual Meeting
August 5, 2006
Special Courts Conference


NHSTA UPDATE: South Central Judicial liaison: Mike Witte reports on the current status of the
appointment of the South Central Judicial vacancy: Mike met with the South Central regional
representative regarding the process for filing the spot. The vacancy has been re-advertised, including the
application of Kay Palmer, a judicial educator for the Texas judiciary. Mike and the Executive Committee
discussed the issue over a conference call and decided not to make a recommendation due to the lack of
qualified candidates. Mike indicated that Ms Palmer would be a good candidate for the vacancy, even
though she is not a judge. Brian Chadrow reported that NHSTA would go through the Federal
Employment process, by treating this vacancy as a federal vacancy, thereby requiring a certification
process and if the persons who have applied are not qualified for federal employment the vacancy would
go un-filed. The matter is basically unresolved.

Brian also reported he is requesting the creation of a Tribal Outreach Fellow, which was referred the South
Central vacancy and urge Mike Witte and our conference send a email indicating our groups’ support of
this new concept.

Peter Evan suggests that the message be conveyed that, if there is no qualified judicial officer for this
vacancy that Ms Palmer been determined to be qualified for this position. No formal position was taken by
the group.

III Nominating Committee Report: Tab 5-1

Chair-Elect Jim Riehl reports for the nominating committee: for the officer’s positions, Linda Strite
Murnane for Chair Elect, Margarita Bernal, for Vice Chair, Matt Martin for Secretary. District 1, 3 and 6:
need to elect by representatives by district caucus.

Jim also reports that the nomination committee does not make a recommendation because it is up to the
caucus; Jim announces that the secretary position is exempt, as it is an appointment by the Chair-Elect;

10:15 Break for Fabulous Prizes:

10:20 Nominations continue: Slate of Officers as reported by Jim Riehl, Tom Warren moves for approval.
Larry Sage seconds. Call for the question. Vote : Motion passes unanimously.

District Nominations Report:

District 1: Mike Pietruszka reports that the delegate from Rhode Island caucus nominates Robert Pirraligia.
subject to any additional person that may wish to serve, he will step down and continue as house of
delegate representative.

District 3: Mike Witte , nominates Earl G. Penrod

District 6: Caucus nominates George Perez

At Large: Jim Riehl indicates that there are two 3 year positions: Motion to nominate Roger Drew: Peter
Evans, moves, second by Bob Pirraligia



                                                                                                        12
Page 4 Annual Meeting
August 5, 2006
Special Courts Conference

Ellie Finn by Margarita Bernal, second by Bob Pirraligia; Ellie withdraws in favor of the good of the group
by the election of someone who has been working in the conference.

Mike Pietruszka moves to close nominations for the above districts and that Roger Drew by appointed for 1
year term. Peter Evans, second. Motion carries. By acclamation, Roger Drew is approved for a 1 year term
to end in August 2007. Motion to accept caucus recommendations for District 3 and 6 are accepted.
Approved unanimously.

Ernestine Gray nominates Sandra Thompson second by Mike Pietruszka .

Karl Grube nominates Ellie Finn, second by Margarita Bernal. Larry Sage requests/offers to resign his
District 8 position to create a vacancy.

Ellie Finn is accepted for District 8 representative.

Ellie Finn’s nomination is withdrawn by Karl Grube. Karl then nominates Gary Ferrero, Utah, second by
Peter Evans Margarita Bernal moves that nominations be closed, second by Mike Pietruszka. Motion
carries.

Jim Riehl serves as clerk for the vote on the pending At Large position. Candidates make their statements,
secret ballots are submitted to Amanda, ABA staff person.

Jim Riehl announces vote: winner for At Large rep: Sandra Thompson

Agenda change: Input for Thursday night function at the 2007 annual meeting in San Francisco:

Jim Riehl announces that there has been a change to our usual Friday night gathering: the Dinner in
Celebration of the Judiciary has been moved from Sunday night to Friday night. Jim explains that Leslie
has asked that our conference function be moved to the Thursday night that we arrive in order to
accommodate the change. The group after some discussion agrees to the change in days. After some
discussion, the group agrees to a boat cruise late night after the opening reception that includes a reception,
with light refreshments to be served. A boat ride to be arranged for the group function. Margarita Bernal is
tasked with completing the arrangements as chair of the Annual Meeting Committee.

Return to Agenda: House Resolutions

Report from Bob Pirraligia regarding the Resolution 112 the “Civil Gideon” Bob reports that there is some
discussion from yesterdays vote and he is asking that we review this issue

After some discussion: Jim Riehl moves to reconsider our Adoption of Opposition: Ernestine Gray
seconds. Motion carries




                                                                                                            13
Page 5 Annual Meeting Minutes
August 5, 2006
Special Courts Conference.

Motion is now to Oppose or Abstain with discretion given to our House of Delegate representative.
Discussion follows: Jim Riehl moves to allow Bob Pirraligia to Oppose or Abstain the resolution; Roger
Drew seconds motion. Bob explains that he senses that other division sections will not oppose the motion
for a resolution supporting the appointment of civil lawyers for litigants. Vote is taken: Ayes 10, Nays 4.
Motion carries. The vote confirmed that Bob Pirraligia is given discretion to either oppose or abstain on
this resolution.

Resolution 120 A-C Matt Martin moves to support resolution, Second by John Rosen. Motion carries
unanimously.

Resolution 113: In support of Diversity: Urges Bar Examiners, state, local , territorial bar associations to
work with law schools, universities, elementary, secondary schools to address significant problems facing
minorities in the pipeline, to increase and encourage more attorneys of color. Bob urges support. Margarita
Bernal moves to support. Larry Sage seconds motion. Linda Murnane speaks in support of resolution,
urges conference to get on board with concept and timely issue. Motion passes unanimously.

Resolution 115: National Conference of Federal Judiciary Re: Booking keeping by the GSA: Purpose:
some on going discussion with federal judges about the problem with General Services Administration
charging more than the cost of the upkeep of building; attempting to restore control over the budget for
buildings costs, etc to the federal judiciary. Margarita Vernal moves to support the motion; Larry Sage
seconds. Motion passes unanimously.

Mike Witte urges that we give Bob Pirraligia the power to use his discretion on all resolutions before the
House of Delegates

Resolution 116: Discretion to Federal Courts to review Military Appeals: Urges Congress to amend federal
statutes 28 USC 1259 (3)(4) to allow review of military decisions. Linda Murnane urges
opposition/withdraw any support for motion. Linda explains the strategy behind motion. Linda moves to
Oppose or Abstain on this motion. Second by Matt Martin. Discussion follows. Motion to Support
Opposition or Abstain: Ayes 7, No 6, Abstain 2: Mike asks that vote opposition is clarified including sense
of our conference.

Bob Pirraglia concludes his report on the House of Delegates

IV: Transition of Chair Mike Witte announces the end of his term of office with the conclusion of this
business meeting and turns gavel over to Jim Riehl.

Jim Riehl, assumes the Chair of the Conference: gives Mike Witte the recognition for his two years work
on the Courage to Live program, which was presented this week. The work of the committee, the
reputation and national stature of the conference has been truly improved by the work of Mike Witte. Mike
is given a certificate for an airline travel, and thanks for the conference for his dedication, commitment and
professional work as Chair of the National Conference of Specialized Court Judges.

Motion to Adjourn: Passes unanimously. Meeting ends at 11: 15 am




                                                                                                           14
       Minutes of the Meeting of the Executive Committee of the National
                    Conference of Specialized Court Judges
                                    Sunday, August 6, 2006
                                    Sheraton Waikiki Resort
                                       Honolulu, Hawaii



The Meeting was called to order by our new Chair, Judge Jim Riehl. Members present were: the
Hon. Jim Riehl, Chair, Hon. Mike Witte, Immediate Past Chair, Col. Linda Strite Murnane,
Chair Elect, Hon. J. Matthew Martin, Secretary, Hon. Larry Sage, Hon. Ellie Finn, Hon. Tom
Warren, Col. Roger A. Drew, Hon. George Perez, Hon. Ernestine Gray, Hon. Sandra Thompson,
Hon. Earl Penrod, Hon. John Rosson, Hon. Peter Evans, Hon. Pamila Brown, Hon. Mark Chow,
Hon. Ben Zvenia and Liz Strouthides, ABA staff. Guests included the Hon. Jim Wynn, and Hon.
Ira Sandron.

Judge Riehl made opening comments which included an overview of his goals for the upcoming
year. Judge Riehl thanked Judge Larry Sage, who is taking senior status and stepping off of the
Executive Committee. Judge Sage is being replaced by Judge Ellie Finn.

Judge Riehl challenged all members of the Conference to sit down with folks on your benches or
in your States to encourage these judges to participate in Conference programs or on the
Executive Committee. Judge Riehl requests that all members of the Conference target two
judicial acquaintances to tell them about the Courage to Live program and other programs of the
Conference.

Judge Riehl then introduced Liz Strouthides our Conference Associate from the ABA staff. Liz
described the organizational structure of the Judicial Division. The goal for the current structure
is a holistic approach so that the staff knows everyone, not just one particular Conference. Jo
Ann Saringer will also staff our Conference.

The Committee organization of the Conference was next addressed by Judge Riehl. Judge Riehl
indicated that over the past several years, the number of Committees have been pared down and
condensed. Judge Riehl noted the following Committee Chair appointments for the coming year:

Committee                                            Chair
Annual Meeting                                       Hon. Margarita Bernal
Awards                                               Hon. John Rosson
Domestic Law                                         Hon. Bill Nooter
Education                                            Hon. Peter Evans &
                                                     Col. Linda Strite Murnane




                                                                                                 15
Judge Ira Sandron spoke to the Executive Committee, seeking co-sponsorship for the
Administrative Law Judges’ program to be given at the Annual Meeting in San Francisco next
year. The program will focus on immigration issues, and is in the concept stage, but in general
seeks to be a two hour CLE primer for non-immigration specialists and will focus on the impact
of immigration issues on other areas of the law (e.g., collateral consequences of criminal
convictions of aliens). The Administrative Law Judges are seeking a financial commitment of up
to four hundred dollars ($400.00), someone from our Conference to serve on the Planning
Committee and a recommendation for a speaker or speakers. Judge Sandron indicated that the
ALJ Conference was seeking sponsorship from private lawyers. Judge Witte wondered if this
created a conflict of interest for our Conference to participate in such an arrangement. Liz
Strouthides indicated that she would find out and report back on this issue. Judge Brown stated
that the CLE ticket sales bring little benefit to the Conference. She recommended support of the
project with a caveat about the potential conflict. Col. Murnane made a Motion to co-sponsor
this program with a retraction of co-sponsorship in case of a conflict. She included no financial
amount in her Motion. Judge Witte seconded the Motion. The Motion passed unanimously. Liz
will communicate this result to Judge Sandron.
Judge Jim Wynn, the Chair-Elect of the Judicial Division visited with the Executive Committee.
In addition to serving on the North Carolina Court of Appeals, Judge Wynn is also a military
Judge and has been in Hawaii for several weeks prior to the meeting, conducting Court Martials
at Pearl Harbor. He is seeking more collaborative efforts between everyone in the Judicial
Division, and thus is seeking input from all of the Conferences. One of his foci will be “The
Courageous Judge.” The Division’s Spring Planning Meeting will be in Charlotte, NC from
April 11-12, 2007. Judge Wynn can be reached at jim.wynn@yahoo.com.
Judge Witte remarked on the ABA’s calendar. If the Conference is to present a program at the
Annual Meeting in San Francisco, the necessary arrangements have to be completed by October,
2006.
(Note: at 8:37 a.m. I asked to be excused, and Col. Murnane and Col. Drew kindly agreed to
keep the remainder of the minutes.)
A discussion followed about the domestic violence program to be presented in San Francisco.
Ideas included possibly presenting the program through a DV center, or schools, or a court.
Lawyers Conference and State Trial Judges indicated some interest in co-sponsoring. The
Domestic Violence Conference also expressed an interest in the program to Chair Riehl.
Judge Ernestine Gray suggested that a law school might also serve as a resource, indicating in
particular that law clinics working with victims of DV might be interested in participating.
Judge Sandy Thompson recommended the DVD "Girl Trouble" for possible inclusion in the
program, indicating that the DVD discusses girls involved in the Juvenile Justice process. Judge
Thompson indicated that Justice Miriam Shearing has a brochure and copies of this film.
Judge Mike Pietruszka indicated that Boy Scouts also have a domestic violence awareness
program, including work that Boy Scouts can do to earn a badge on DV Awareness.
Judge Evans and Judge Murnane will discuss the program ideas and present a program proposal
to Chair Riehl.


                                                                                               16
Judge Pamila Brown discussed other outreach resources for the DV program for 2007 in San
Francisco.
Colonel Murnane suggested a Town Forum with teachers, judges, law students, prosecutors and
public defenders to provide an opportunity to exchange perceptions about the courts and their
role following reports of suspected DV by teachers to open a dialogue.
Judge Pamila Brown is the new Chair of the Domestic Violence Commission. With 17 members,
its purpose is to train public and private sector counsel on issues related to DV in the courts.
Chair Riehl called on Judge Rodger Drew for a report on the Military Courts Committee. Judge
Drew reported that the Korean legal system is currently undergoing a complete revision. He
indicated that they are changing from a three-judge system to a jury trial system. Additionally,
Judge Drew indicated that the Koreans are moving toward a law school system for training
attorneys. Previously, Judge Drew indicated, the Koreans were using a mentor training system
for attorney training without a formal law school process.
Judge Drew indicated that there would be opportunities to assist in this international endeavor
and discussed the International Outreach committee's interest in such opportunities should they
arise. Judge Drew indicated these new systems were being implemented under a 5-year phase-in.
Judge J. Mark Chow discussed the new Mental Health Courts Committee and his interest and
involvement with that committee.
Judge George Perez noted that the deadline for the Fall J.D. Record is August 23rd. He indicated
that articles for the J.D. Record should be no longer than 750 words, or 600 words if photos are
included.
To become involved in committees there is an on-line enrollment process. Members interested in
committee involvement should go to http://www.abanet.org/jd/ncscj/committees.html and sign
up there for service on committees of interest.
Chair Riehl indicated that it is his goal by the end of the year to have an online roster of members
with information on what they do, such as type of court, committee membership, contact
information, etc.
Judge Riehl indicated that committee appointments begin 1 Sep 06.
Judge Riehl indicated that Judge Margarita Bernal had volunteered to orchestrate a social event
for the conference at the annual meeting in San Francisco.
There was further discussion about working with a DV center, school or court, or a family
violence center in Oakland, CA for the 2007 program at the annual meeting.

Judge Riehl asked that Robin Rungee be kept in the loop on the DV program for annual meeting
as the plans developed. He also asked that Judge Pamila Brown, and Ernestine Gray be kept in
the loop.
The meeting was adjourned.




                                                                                                  17
TAB C




    18
                   National Conference of Specialized Court Judges
                                     Policy on
                                Spending Authority

WHEREAS the National Conference of Specialized Court Judges (NCSCJ) is currently in
possession of funds in accounts unrestricted as to use by the American Bar Association, and

WHEREAS the NCSCJ has received requests from various parties for financial contributions
from these unrestricted funds, and

WHEREAS the Executive Committee of the NCSCJ wishes to address these requests in a
professional and consistent manner,

THEREFORE, BE IT KNOWN that the Executive Committee of the NCSCJ hereby adopts the
following policy:

All requests for discretionary funding shall be sent to the Conference Chair. The Conference
Chair shall evaluate the request to determine if the expenditure will further the purposes of the
Conference as set forth in Article 1.2 of the NCSCJ By-laws and that it is for traffic court
outreach programs or judicial education in traffic related issues.

The Conference Chair and Officers of the NCSCJ may authorize expenditures within the
following spending authorities without the prior approval of the Executive Committee.

The spending authorities shall be as follows:

       (1)     The Conference Chair may authorize or make expenditures not to exceed $1,000;
       (2)     The approval of the Conference Officers as defined in Article 5.1 of the NCSCJ
               By-laws (majority vote of quorum in attendance) may approve expenditures from
               $1,001 to $5,000;
       (3)     The approval of the Executive Committee as defined in Article 4.2 of the NCSCJ
               By-laws (majority vote of quorum in attendance) is required for all expenditures
               in excess of $5,000.

Voting for any spending authorization within the purview of this policy shall be held in person or
by telephone, fax and/or e-mail, the specific method being in the discretion of the Conference
Chair.

                  National Conference of Specialized Court Judges




                                                                                                    19
  National Conference of Specialized Court Judges
                     Policy on
                   Contributions
 WHEREAS, people, groups and events including, but not limited to, the
   American Bar Association (ABA) President, ABA President-Elect, Diversity
   scholarship program, CEELI Luncheon, Margaret Brent Luncheon, the Tribal
   Courts Council, the Judges’ Network Sub-grant program and Spirit of
   Excellence Luncheon request monetary contributions from the National
   Conference of Specialized Court Judges (NCSCJ), and

 WHEREAS, the NCSCJ has limited resources from which to make such
   contributions, and

 WHEREAS the Executive Committee of the NCSCJ wishes to address these
   requests for contributions in a professional and consistent manner,

 THEREFORE, BE IT KNOWN that the Executive Committee of the NCSCJ
   hereby adopts the following policy:

1) Each fiscal year, at the discretion of the Executive Committee, a certain amount
    of money shall be budgeted for “Conference Contributions” as a separate line
    item. The amount shall be based on the Conference’s year-end membership
    figure.

(2) All contribution requests shall be reviewed and decided in accordance with the
    National Conference of Specialized Court Judges Policy on Spending Authority
    until funds in the budgeted line item for contributions are exhausted.

(3) When the budgeted amount is depleted, the Conference shall not make any
    further monetary contributions until the budget line is replenished in accordance
    with paragraph (1) above.




                                                                                        20
TAB D




        21
        NATIONAL CONFERENCE OF SPECIALIZED COURT JUDGES
                   TRAFFIC COURT COMMITTEE
              REPORT FOR THE 2007 MIDYEAR MEETING



        At the 2006 ABA Annual Meeting in Honolulu, Hawaii, Judge Earl G. Penrod
was appointed to serve as chair of the Traffic Court Committee of the National
Conference of Specialized Court Judges following two year of outstanding service by
outgoing chair, Judge Larry Sage of Nevada. The following judicial officers have agreed
to serve on the Traffic Court Committee in 2006-07: Vicki Carmichael, Judy Eiler, Karl
Grube, Sharon Hatten, Bob Pirraglia and Mike Witte.
        A number of members of the NCSCJ Traffic Court Committee participated as
faculty in the judicial outreach program chaired by Colonel Linda Strite Murnane (USAF,
retired) presented to school aged children in Honolulu immediately prior to the ABA
Annual Meeting.
        The Traffic Court Committee has continued to develop and present traffic court
programs in various states throughout the country. In September of 2006, NCSCJ
Delegate to the House of Delegates Bob Pirraglia served as lead faculty for the Traffic
Safety Program presented to Arkansas District Judges. The 2006 program was a return
engagement following the successful NCSCJ Traffic Court Program presented in 2005.
        2005-2006 Conference Chair Mike Witte served as lead faculty for the NCSCJ
Traffic Court Technology Program in Indiana offered on October 12 and 13. The
program was very well received by the82 judicial officers in attendance and discussions
will be initiated regarding a return of the program to Indiana in subsequent years.
        Judge Karl Grube served as lead faculty for a highly successful program in North
Dakota. The seven hour program, which was presented on October 16th, received
excellent evaluations.
        The Committee continues to actively seek opportunities to offer our Traffic
Court/Safety/Technology Program in various jurisdictions. Further, it has been suggested
by NCSCJ member Karl Grube who is serving as Chair-Elect of the Judicial Division
Committee on the Traffic Court Program that the NCSCJ Traffic Court Committee begin
a dialogue with the Judicial Division Committee on the Traffic Court Program so the
respective entities can avoid duplication and competition. Conference Chair James Riehl
has indicated he will appoint a liaison from the NCSCJ Traffic Court Committee to the
Judicial Division Committee on the Traffic Court program to explore opportunities for
collaboration and cooperation.

                                           Respectfully submitted,

                                           Earl G. Penrod, Chair
                                           Traffic Court Committee




                                                                                           22
TAB E




        23
                                  Publications


The Judges’ Journal

The Judges’ Journal is published for judges, lawyers, and others interested in the courts
and how they operate. The Judges' Journal includes timely articles addressing issues
affecting members of individual Judicial Division Conferences as well as matters
affecting the judiciary as a whole. This is the nation's outstanding judicial journal and is
the authoritative source on innovations for the judicial system. In fact, The Judges'
Journal has received a "Gold Award" in the Scholarly Journals category from the Society
of National Association Publications.

Please see the following website to view the Judges’ Journal Publication:

http://www.abanet.org/jd/publications/jjournal/2006spring/home.html



The Judicial Division Record
The Judicial Division Record is the Judicial Division's official newsletter. It includes
information from each of the Division's six Conferences about topics ranging from court
technology to upcoming educational programs. Along with information relevant to all
judges, information tailored to judges of particular jurisdiction is also included.

Please visit the following website to view the Fall Edition of the Judicial Division
Record:
http://www.abanet.org/jd/nosearch/jdrecord/2006fall.pdf




                                                                                               24
TAB F




        25
   REPORT OF THE NATIVE AMERICAN TRIBAL COURTS COMMITTEE
      NATIONAL CONFERENCE OF SPECIALIZED COURT JUDGES
        AMERICAN BAR ASSOCIATION—JUDICIAL DIVISION
                    MID-YEAR MEETING, 2007



The Native American Tribal Courts Committee continues to function as the liaison
between the National Conference of Specialized Court Judges and the Judicial Division’s
Tribal Courts Council, an entity this Committee helped create. A primary focus of the
Tribal Courts Council for the coming year is to create a mechanism to stimulate
participation by Native American law students in the Judicial Division’s clerkship
program conducted at Mid-Year Meetings. Additionally, the Council is preparing a
program for presentation at the 2008 Annual Meeting. Suggestions for that program or
assistance/co-sponsorship from the NCSCJ would be most welcome.

Native American Judges are continuing to join the ABA as a result of the Tribal Courts
Council. The current Chair of the Tribal Courts Council is the Hon. Stacy L. Leeds, an
Associate Justice of the Cherokee Supreme Court in Oklahoma. The website for the
Tribal Courts Council can be found at: http://www.abanet.org/jd/tribalcourts/home.html.

Respectfully Submitted,

J. Matthew Martin
Associate Judge
The Cherokee Court
Chair

November 8, 2006.




                                                                                          26
TAB G




        27
                 AMERICAN BAR ASSOCIATION
                 HOUSE OF DELEGATES REPORT
                               2007 MIDYEAR
                                 MIAMI, FL

The Summary of Recommendations that will be presented for consideration at this
meeting is now available on the ABA’s website. The summary is being
transmitted to you at this time to give you a full opportunity to consider
recommendations of particular interest.

Please visit the following website for the Summary of Recommendations:
http://www.abanet.org/leadership/2007/midyear/docs/SUMMARYOFRECOMMENDATIONS/SUMOFRECS.doc




                                                                                    28
TAB H




        29
                              2007 MIDYEAR REPORT
                                      NHTSA
                                   December, 2006

                           Submitted by Judge Kent Lawrence

        As the recipient of the 2007 NHTSA/ABA Judicial Division Conference of
Specialized Court Judges Judicial Fellowship, I perceive it important to share certain
information about my professional background and the primary reason for my interest in
becoming a judicial fellow. My professional career path has included service as a patrol
officer, drug task force officer, District Attorney’s office special investigator, Chief of
Police and prosecuting attorney prior to being entrusted with my current judicial position
in November, 1985. During the last twenty-one years, I have been privileged as a judge to
experience continuing contact with law enforcement officers, prosecuting attorneys,
public defenders and other attorney’s while presiding over approximately 2,000 criminal
and civil jury trials. Additionally in February, 2001, I had the unique opportunity to be a
part of initiating the first DUI/Drug Court Program in Georgia for “high risk” repeat
impaired drivers. The program has proven to be the most exciting, challenging and
rewarding work in my thirty-five plus years in the legal system. Candidly, I have
witnessed more lives transformed in a positive direction than I ever dreamt possible. The
formation and the implementation of our impaired driving program facilitated contact and
a working relationship with both the National Drug Court Institute (NDCI) and the
National Highway Traffic Safety Administration (NHTSA). Additionally, I have served
nationally as a NDCI staff consultant for the purpose of developing, facilitating and
implementing specialized impaired driving courts. Such service has resulted in
continuing contact across the country with other judges, prosecuting attorneys, law
enforcement officers and other drug court practitioner’s. For all of the circumstances
outlined, I view the Judicial Fellowship as an opportunity, privilege, and honor to
promote communication, cooperation, education and collegiality between and among all
of the disciplines and agencies aforementioned.
       I have developed the following initial work plan goals for 2007:
       (1) Identify a specific topic for three articles to be published in 2007 in an
           assigned Judicial Division Record publication;
       (2) Monthly contact with NHTSA office representatives in each region to offer
           continuing judicial assistance;
       (3) Attend both the Midyear and Annual ABA meetings and make presentations
           as requested;
       (4) Serve on the Focus Group for the eLearning Curriculum for the Courts Project
           Committee to develop and implement a web-based training course on
           impaired driving for judges and others;
       (5) Meet all my invoice, travel, and reporting requirements in a timely manner;
       (6) Meet with NHTSA headquarters’ staff at least three times during 2007;




                                                                                              30
       (7) Provide staff training for NJC and/or NDCI; and
       (8) Prepare and make presentations at national and state conferences as
           designated by NHTSA.
        To date, I have scheduled a meeting on January 24, 2007 with NHTSA staff
members in Washington, D.C. Additionally, I have registered to attend the ABA
Midyear Executive Committee meeting of Specialized Court Judges in Miami, Florida.
Also, I have scheduled a presentation on DWI courts in Boise, Idaho in May, 2007.
       I have had contact with Judge Yvette Diamond who forwarded me a copy of the
video “Branded D.U.I.” for my review. Also, I participated in a conference call on
December 6, 2007 with Gene Flango of the National Center for State Courts in
connection with the scheduling of a group meeting in Williamsburg, VA for the period of
April 12-14, 2007 regarding curriculum development for the web-based impaired driving
course for judges and judicial educators.




                                                                                          31
                           ABA Midyear Meeting Report
                         June, 2006 through November, 2006
                                    Submitted by:
                                Judge Judith R. Eiler
                             Judicial Outreach Liaison
                              Pacific Northwest Region


June, 2006
June 11, 12, 13 and 14, 2005 the District and Municipal Court Judges for the State of
Washington met in Ocean Shores, Washington for our annual Spring Conference. Over
300 judges attended. I spoke with over 50 judges on a one on one basis regarding DUI
Courts for their county or city. The final educational seminar of the conference was on
sentencing. The City of Spokane DUI Court gave a compelling presentation of their
program and every judge present received a copy of both 10 Promising Sentencing
Practices and the DUI Best sentencing Practices Guidebook.
In early June the press reported that a 7 time DUI offender had re-offended again. She
had last been in the public view when she hit and killed a young mother while drunk.
She served 6 years in prison and now is charged again. The new DUI felony law in
Washington will not apply to her as it does not go into effect until July. This course of
events has generated a lot of press and a lot of judicial interest in DUI Courts. The
Presiding Judge of the King County Court, the elected Prosecuting Attorney, as well as,
various members of the County Council all have expressed an interest in establishing a
DUI Court for King County. I look forward to reporting on the progress of a DUI Court
in my home county.
July, 2006
July 2006 was full of planning for our outreach in Hawaii. The JOLs presented the
Courage to Live Program to elementary and middle school students in Hawaii the day
before the ABA Conference in August. The e-mails and phone calls to coordinate
presenters from all over the globe to meet and present the Courage to Live program
without previously having worked together was awe inspiring. Many thanks to retired
Judge Murnane for her efforts to bring us together for this outreach.
I also wrote an article for Highway to Justice on my seatbelt survivor’s story recounting
my experience with seatbelts in 1961 and how one saved my life, my parents and sister
and my cousin.
I attended the South King County Judge’s meeting and reported on the slow progress of
getting all the players together for the King County DUI Court.
I filled out and returned the questionnaire from Pamela Bulloch for the National Highway
Traffic Safety Administration




                                                                                            32
August, 2006
August 2, 2006 I co-presented a Courage to Live program at the Mokulele Elementary
School on Hickham Air Force Base, Hawaii. About 150 – 200 students participated in the
program, along with their teachers.
August 3 through August 7 I attended the ABA Conference in Honolulu, Hawaii. The
JOLs attended the Executive Committee meetings of the National Conference of
specialized Judges.
I began planning for my presentation for the Idaho Traffic Conference in September in
Boise. I also continued to prepare for my presentation in October at the ABA Traffic
Safety Conference in Charleston, South Carolina. I have obtained the materials from the
Spokane Municipal Court for their DUI Court and have permission to use them in the
ABA program in Charleston.
I am monitoring the three DUI Forums held in Washington State. The first was August
25, 2006 in Vancouver, Washington. There was a lively discussion on the District and
Municipal Court’s list serve on the issue of both the forums and the value of DUI Courts
in Washington. The Vancouver forum had a presentation from the Multonomah County,
Oregon DUI Court model.
September, 2006
In September I continued to monitor the remaining two DUI Forums one in Sea Tac on
September 8, 2006 and the other in Kennewick on September 15, 2006. Again they
produced a lively post conference discussion on both the merits of DUI Courts and the
model of DUI Court that might be most effective in our courts.
I attended and spoke at the Idaho Traffic Conference on Sept. 11 – 12, 2006 in Boise and
attended the Seatbelt Summit as well. As a result of my presentation I was approached by
the victim’s assistance director to possibly speak before their conference later on in the
year.
Final preparation for the ABA Traffic Safety Conference in Charleston, South Carolina is
a blizzard of phone calls and e-mails to get all the materials and speakers ready.
I have been monitoring our District and Municipal Court Judges list serve on the issue of
severance of a new DUI charge and a charge of failure to install/use an interlock from a
prior DUI charge. Lots of discussion and viewpoints presented for Washington Judges.
I attended the Judges Fall Conference in Spokane, Washington from September 24 to the
27. The Conference has judges from the Supreme Court, Court of Appeals, Superior,
District and Municipal Courts, plus representatives from the Tribal Courts. I met one on
one with a number of judges regarding traffic safety issues and DUI Courts for the Courts
of Limited Jurisdiction in Washington.




                                                                                             33
October, 2006
October 11 – 13 I attended and gave a presentation at the ABA Traffic Safety Conference
in Charleston, South Carolina. My topic was: Judicial Activism Is Not a Dirty Word. All
kidding aside about the fact that it is actually two words, the point was to encourage,
support, enlist and motivate Judges to get active in a positive way (rather than the bad
image of Judicial Activism as law-making) and help save lives by using programs such as
Courage to Live, promoting therapeutic courts, and using the Judiciary as positive
influence on their communities.

When I returned I was invited by the Washington Traffic Safety Commission to represent
them at a NHTSA/MADD conference on sobriety checkpoints slated for Texas in
December, 2006. I immediately started preparing and re-arranging my December
calendar to accommodate the days in Texas. This conference was later cancelled. I hope
that it will be re-scheduled, maybe later in 2007.

I have continued to assist the ABA Traffic Safety Conference with the planning for the
2007 conference in Seattle. While I have always appreciated the work that goes into
planning and executing a conference, I continue to be surprised at the amount of work,
preparation and effort it takes to put on a conference as successful as the annual ABA
Traffic Safety Conference.

I attended a half-day meeting of the Washington Traffic Safety Commission in Olympia,
Washington.

At the end of October I attended a dinner meeting of Women Judges and attorneys and
gave a report on the DUI Courts. I also attended a half-day King County Judges meeting
and gave an up-date on the long term progress of the King County DUI Court.

November, 2006
I received a copy of the Washington State Highway Safety Performance Plan for 2007.
This is the guide to planning for Washington State and the key to our Federal funding. At
Fifty plus pages it covers just about every aspect of traffic safety. The Commissioners
approved the draft at the October meeting.

I was away for much of November as I visited Scotland for two weeks, then there was the
Thanksgiving Holiday, then our courts were closed for two days because of the snow and
ice. Upon my return to the office there was an avalanche of e-mail in my in-box
regarding ABA matters. Responding and reading e-mail and getting caught up is almost
as exhausting as traveling.




                                                                                            34
2007 Goals
My primary goal is to facilitate the establishment of the DUI Court in King County,
Washington. It is a very political issue with both the Court, its Presiding Judge and
administration and with the County government. As I have noted in the past it is much
like making a u-turn with an aircraft carrier. It can be done but not on a dime. Currently
the County council has ordered a plan from the jail, sheriff, County Executive’s office,
judges and public defense to present plans by May, 2007 to assist in the placement of
mentally ill and/or drug and alcohol addicted defendants in the jail. The new in-coming
Presiding Judge will be including as part of the Court’s plan, an emphasis on our current
Mental Health Court and the addition of a DUI Court.

John Moffat, Pacific Northwest Region administrator, has asked me to assist him in
working with the State of Oregon for more and better educational opportunities and
assistance with other safety related issues for the Courts. While the King County DUI
court is pending, I will be turning my efforts toward Oregon.

I will continue to assist the ABA Traffic Safety Seminar for the Seattle Conference set
for October, 2007.


Respectfully submitted,



Judge Judith R. Eiler
Judicial Outreach Liaison,
Pacific Northwest Region




                                                                                             35
To:   ABA Judicial Division
Re:   Year End Report
From: Karl B. Grube
      ABA/NHTSA
      Judicial Outreach Liaison
      Southeast Region
Date: November 22, 2006


Significant Accomplishments
This year brought many opportunities for outreach through service as a judicial educator.
In addition to teaching at the National Judicial College, I also prepared and presented
judicial education program segments in Florida, South Carolina, Kentucky North Dakota,
Arkansas, and at the Lifesavers conference in Austin, Texas. One of the most rewarding
outreach activities was assist in organizing the Courage to Live Program that was
presented in Honolulu, Hawaii in conjunction with the American Bar Association’s
Annual Meeting. As the faculty organizer and a team leader, I assisted teams of
presenters who were assigned to various schools that educate the children of military
personnel. The programs that were presented were designed to target young people and to
emphasize the importance of traffic safety and the avoidance of risk taking.

Locally, I was appointed to be the honorary chairperson of the “SafeKids Walk this Way
to School” event. My duties included presiding as the Master of Ceremonies at a
recognition luncheon and assisting in obtaining the cooperation and participation of local
school officials in the Walk to School day event. I chaired each of the organizational
meetings that were conducted at All Children’s Hospital. I personally signed hundreds of
letters to community leaders and elected officials urging them to participate in the event.
I worked with FedEx, one of the corporate sponsors, to distribute flyers to parents
concerning the importance of staying out of the “no zone” around large trucks that have
limited side visibility. The SafeKids Walk this Way to School event covered three
counties and was the most successful one thus far during the seven-year history. A total
of 33 schools and 7,700 parents and students participated in the 2006 event.

This year I was appointed as the vice chair of the ABA’s Committee on Traffic Court
Program. This appointment will eventually lead to chairship of this committee. The
Committee presents a comprehensive 3-day program annually. The program deals with
topics such as the law of search and seizure, arrest, sentencing DWI offenders, speed
measurement, blood alcohol pharmacology, community outreach activities and case
management. As a member of the 7 person committee, I will be involved in selecting
topic, presenters, and the location of the program. The program is not limited to only
judges, but typically also has prosecutor and defense counsel participants. This year’s
program was held in Charleston, SC; next year’s program will be held in Seattle, WA.




                                                                                              36
Plans for 2007
During the New Year I plan to contact all of the State Judicial Educators in the eight
states that comprise the NHTSA Southeast region. My purpose will be to emphasize my
availability as a judicial educator concerning traffic safety-related topics. I plan to send
each State Judicial Educator a copy of some of the materials that I have prepared in
conjunction with presentations that I have made in other states as well as at the National
Judicial College. I will also provide copies of PowerPoint slide shows and a CD
containing a video production that I made. Copies of my evaluations from other teaching
engagements will also be included. I will also offer my assistance in acting as a liaison to
assist in helping the educators obtain financial assistance through their State’s Governor’s
Highway Safety office. I will also emphasize, to those in authority in the Regional office,
the importance of promoting judicial education programs.

I intend to continue offering my services to the ABA’s Judicial Division in presenting
traffic safety-related education programs at the National Judicial College and at other
venues where the National Conference of Specialized Court Judges will be presenting
traffic law and procedure judicial education programs. I will also continue to provide
articles for publication in the Judicial Divisions “Highway to Justice” newsletter. I also
look forward to being the organizer and presenter of a program at the upcoming 2007
LifeSavers conference.

This from August 2006 through August 2007, I will function as chair of the Florida Bar
Association’s Law Related Education Committee. In that capacity I intent to emphasize
the importance of including traffic law and safety related education in programs that are
presented in Florida’s schools by Bar Association volunteers. I also look forward to
working with the ABA’s Committee on the Traffic Court Program in planning and
organizing the upcoming program that will be held in Seattle, Washington in October of
2007. I will be one of the presenters in the program in addition to being one of the
organizers.


Respectfully submitted,
Karl B. Grube
Karl B. Grube
Senior Trial Court Judge
ABA/NHTSA Outreach Liaison
Southeast Region




                                                                                               37
                                 MEMORANDUM
To:     American Bar Association – Judicial Division – National Conference of
        Specialized Court Judges; Judges of the Pacific Territories of Guam, the
        Commonwealth of Northern Marianas, and American Samoa and the States of
        Hawaii, California, Arizona, and Nevada; NHTSA Western Region Supervisor
        Wm Kootsikas; NHTSA National Task Manager Brian Chadrow
From: Senior Judge Larry Sage, State of Nevada
        Judicial Outreach Liaison, National Highway Safety Traffic Administration’s
        Western Region
Re: ABA Midyear Meeting Report – Miami
Date: 30 Dec ‘06
As your ABA / NHTSA Western Region Judicial Outreach Liaison (JOL), I report the
following from the ABA Annual Meeting in Honolulu, Hawaii to date:
1. The NCSCJ hosted numerous school programs at various military elementary and
     middle schools prior to and during the Annual Meeting. My JOL participation and
     preparation occurred with the team of Judge Saloom, LA, at the Fort Shafter
     Elementary School (Honolulu). Our program was on Safety Belt usage and involved
     a football player from the University of Hawaii and Hawaii OTS equipment.
2. Preparation and presentation of two hours of facilitation to the Arizona Governor’s
     Highway Safety Traffic Office Conference and Arizona’s Law Enforcement and
     Prosecutors Conference (Tucson).
3. There were informational presentations made to the Arizona Judges at their GHSTO
     Conference and the Nevada Judge’s Association Summer Conference.
4. Personal conferences were held with the new NCSCJ Region 8 representative and
     with Hawaii’s Gordon Hong (Honolulu).
5. Attend and present “Judicial Considerations” at the Speed Management Facilitator
     Training Workshop (Boise).
6. Attend “Commercial Drivers’ Licensing Laws: A Faculty Development Workshop”
     at the National Judicial College; funded by the Federal Motor Carrier Safety
     Administration.
7. Draft and prepare Power Point presentation for Turkmenistan highway safety
     delegation at the National Judicial College on 5 Oct. Draft Power Point presentation
     for Oct. submission to Earl Hardy re: future Speed Management Faculty
     Development Workshops and the “Judicial Considerations” materials.
8. Draft and Submit three (3) articles for the “NHTSA Highway to Safety” insert for
     the ABA JD Record.
9. Draft article (“Why All Judges Need to Practice Personal and Courthouse Safety”)
     for Highway to Justice.
10. Topic/question preparation, travel and participation at the Las Vegas Municipal
     Court DUI Conference, Las Vegas, Nevada; Panel member for “DUI Courts: A New
     Venue” and Mediator for “The Long Arm of the Law: Prosecutors Panel.”
11. WR referral and contact with Centers for Disease Control and Prevention, National
     Center for Injury Prevention and Control, Division of Injury Response for a January
     meeting on alcohol impaired drivers.



                                                                                            38
12. Draft another article for consideration by ABA JD Record insert: “Highway to
    Justice.”
13. Graduated with a Masters of Judicial Studies degree (honors), jointly given by the
    National Judicial College and the University of Nevada (Reno).

Please do not hesitate to contact me, as your JOL representative, for any NHTSA or
NCSCJ        information      you     may       need,   to     give      me     your
State/Office/conference/representation input, or to get information on the special
programs we offer. I’m a Senior Judge, which means I have ample opportunity to be of
service to you as needed. All you have to do is…ask.

HOOAH!




                                                                                         39
TAB I




        40
To:   National Conference of
      Specialized Court Judges
      Executive Board
Re:   Report of Ethics Committee
From: Karl B. Grube
      Senior Florida Judge
Date: November 26, 2006


                     Report of NCSCJ Ethics Committee

As chair of the Ethics Committee, my efforts to inspire communication and
cooperation in pursuit of committee projects have proved unsuccessful. I have
contacted the committee members by e-mail and solicited news items and articles
regarding ethics. There has been no response. have also sent copies of my
teaching materials to members of the committee and offered them for use in
programs that they might be involved in their own jurisdictions.

As a productive member of this committee, I have succeeded in preparing ethics-
oriented teaching materials that have been successfully utilized in various state
judicial education programs. In Arkansas, in conjunction with a Traffic Court
Technology program, Judge Robert Pirraglia and I presented a program centered
on the ethical prohibitions concerning campaign speech and expression. I prepared
a PowerPoint slideshow that illustrated ethical constraints on making statements as
well as announcing, committing, pledging and promising in the course of
campaigning for office. This PowerPoint is available to all members of our
conference. The Arkansas ethics of campaign speech program was well received.
This was followed by a program of similar substance that was presented in
Kentucky by Judge Pirraglia and me. I also presented a program segment on the
Ethics of Outreach to the Municipal Court Judges in North Dakota in October.

I regret that our committee has not been more productive in terms of involving the
other members. Perhaps more frequent contact with the members via e-mail may
be the solution. I will continue to make efforts in this direction in the coming year.
I appreciate having had the opportunity to chair this committee.




                                                                                         41
TAB J




        42
  American Bar Association
     Judicial Division
         2006-07 Budget
         ABA Midyear Meeting
         Miami, Florida
         February 2007




Agenda
         General Revenue
            FY2006-07 General Revenue
            Allocation
            FY1997-2007
         Division Dues
            Pro Rata Return
            JD & Conferences Fund Balance
            JD Conference Dues
            2006-07 Dues Projections
         Conference Grant Funds
         AJC Funds
         Tuition-Based Programs
         Support Funds
         Conference Budgets


                                            2




                                                43
                         JD General Revenue Request
2006-07 Budget                                                                                                            Gen. Rev. Amt.
Staff Support: salaries, overtime, payroll taxes, fringe benefits, temporaries
                                                                                                                                          $612,544
and consultants
Photocopying, printing, duplicating, etc.                                                                                                  $11,000
Postage                                                                                                                                      $3,300
Miscellaneous: supplies, telephone, service fees, space occupancy charges,
                                                                                                                                          $190,597
computer equipment, electronic communication fees, etc.
Staff Travel: Annual Meeting, Midyear Meeting, ABA programs, outreach,
                                                                                                                                           $33,000
etc.
General Activity                                                                                                                           $66,000
Planning Activities: staff/member travel, group functions, printing, supplies,
                                                                                                                                           $28,000
etc.
Commission on the American Jury                                                                                                              $5,000
Annual Meeting                                                                                                                             $36,000
Governance Meetings: Section Officers Conference, ABA Day, etc.                                                                              $3,519
Judges’ Journal                                                                                                                           $103,000
Standing Committee on Minorities in the Judiciary                                                                                          $10,000
Conference Support (6 conferences @ $25,000 per conference + $25,000 for
                                                                                                                                          $175,000
Appellate Judges Seminar)
                                                                                                                                                3
Estimated General Revenue Allocation                                                                                                     $1,276,960




                                  JD General Revenue Allocation
                                  FY1997-2007

                   2006-07                                                                                              $1,276,960

                   2005-06                                                                                    $1,157,875                  2006-07
                                                                                                                                          2005-06
                   2004-05                                                                                            $1,242,000          2004-05
                                                                                                                                          2003-04
                   2003-04                                                                                            $1,242,000
                                                                                                                                          2002-03
     Fiscal Year




                   2002-03                                                                                           $1,236,000           2001-02
                                                                                                                                          2000-01
                   2001-02                                                                                           $1,221,000           1999-00
                                                                                                                                          1998-99
                   2000-01                                                                              $1,078,000
                                                                                                                                          1997-98

                   1999-00                                                                       $1,014,000

                   1998-99                                                                       $1,010,000

                   1997-98                                                                                               $1,292,000

                             $0   $200,000   $400,000       $600,000       $800,000        $1,000,000      $1,200,000       $1,400,000
                                                        General Revenue Allocation (USD)




   Decrease in 2005-06 is due to consolidation of JD Director and JC positions.
                                                                                                                                            4




                                                                                                                                                      44
Pro Rata Return

   Unspent dues are maintained in a Judicial Division account to
   avoid forfeiture at fiscal year’s end.
   Dues allocations are recorded each year beginning in FY1998-
   99. Dues reports are circulated to Conference Chairs as
   information is received.
   Conference dues cannot be segregated into separate
   Conference accounts for roll over. At fiscal year’s end, funds in
   the Division account “roll” into the JD fund balance for allocation.
(The amount carried over is subject to approximately 50% pro rata return.)




                                                                             5




Pro Rata Return, continued

   At the end of each fiscal year, unused general revenue funds
   appropriated by the ABA are subject to a pro rata return
   before being allocated to the JD Fund Balance as follows:
   Net Revenue – Expenditures – Transfers – Pro Rata Return =
   Net Income Transferred to JD Fund Balance
   The pro rata return is a percentage returned to the ABA from
   the ABA General Fund appropriation. The percentage is
   based upon total revenues and realized gains compared to
   the appropriation from the general fund.




                                                                             6




                                                                                 45
JD & Conferences Fund Balance
Spreadsheets detailing dues allocated to the JD
fund balance based upon Conference
membership have been maintained.
By unanimous JD Council vote at the 2000
Annual Meeting, Conferences will maintain
existing unspent dues allocations for three years
before forfeiting monies to the Division. Monies
will be forfeited on a “first in, first out” basis.
  Important Note: Dues not utilized within the current budget year
  are subject to an approximate 50% pro rata return.


                                                                 7




Conference Dues Policy
   Beginning in FY2005-06, the JD Council voted to
   apply dues to Conference expenditures in the
   following order:
    1.    Dues to expire
    2.    Current fiscal year dues
    3.    Additional “rolled” dues


   Per the same Council vote, Conferences
   overspending their budgets will be expected to
   reimburse the Division out of the next fiscal year’s
   budget .



                                                                 8




                                                                     46
     JD & Conferences Fund Balance
     As of 4/06
                                                                           $450,000                                             $433,165
 The JD & Conferences Fund
 Balance contains monies carried
 over at fiscal year end. Funds are                                        $400,000
                                                                                                                            $377,124
 available to support JD Council and
 Conference initiatives based upon                                         $350,000
 dollars available to each group.                                                                                        $319,675
 The chart details fund balance




                                              F u n d B a la n ce (U S D
                                                                           $300,000
 growth for the last ten years.                                                                                      $275,823

     Note: After the Manhattan Beach                                       $250,000
     Meeting in 1998, Conferences
     began to receive dues in                                              $200,000
                                                                                                              $201,198
     proportion to total membership.                                                                                                       Fund Balance
     Conference dues rolled have been
     maintained in the JD Fund                                             $150,000                   $136,791
                                                                                                          $132,128
     Balance since 1998 and are
     detailed on the next slide.
                                                                           $100,000
 Prior to 1995, the Division                                                                    $62,267
 experienced negative fund                                                  $50,000 $47,885 $37,789
                                                                                        $35,985
 balances. The JD fund balance
 continues to grow each year.
                                                                                 $0
                                                                                      1995 1997 1999 2001 2003 2006
                                                                                                       Fiscal Year

                                                                                                                                               9




  Judicial Division Conference Dues
  As of 12/06


              AJC           ALJ            FTJ                                         SCJ                   STJ                       LC
2004-05       0             3,398.50       4,554.95                                    3,912.52              7,847.69                  5,179.33
Rolled dues


2005-06       4,023.83      512.00         2,217.62                                    2,713.05              0                         4,331.66
Rolled dues


2006-07       29,499.05     6,887.05       8,830.03                                    9,685.95              26,476.09                 13,431.40
As of 12/06

Total:        33, 522.88 10,797.55         15,602.60                                   16,311.52             34,323.78                 22,942.39



 Important: Dues revenue is subject to an approx. 50% pro rata return at the end of FY2006. For
 this reason, it makes sense to utilize dues in their entirety each year.




                                                                                                                                               10




                                                                                                                                                          47
JD & Conference Fund Balance

       The Fund Balance contains conference and Division
       monies.

Conference Dues Balance                              $26,594
(rolled from previous years pursuant to JD policy)

As of 4/06



Judicial Division Balance                            $406,571

As of 4/06




                                                                       11




2006-07 Division Dues Projections

      AJC:                     $35,000
      LC:                      $14,000
      NCALJ:                     $9,000
      NCFTJ:                   $11,000
      NCSCJ:                   $11,500
      NCSTJ:                   $31,000
      Projections are estimates based upon previous years’ dues and
      actual dues received through April 2007. Dues are allocated at the
      discretion of the Conference Executive Committee.


                                                                       12




                                                                            48
Conference Grant Funds
NCSCJ NHTSA Three-Year Grant
 $89,852.82
        Expires September 30, 2007
              Judicial Fellows, Highway to Justice Newsletter, Annual Outreach
              Program
        Regional Judicial Outreach Liaison (expires September 15,
        2007)
              Three judges working with Judicial Fellows, NHTSA regional
              offices, JD staff and NCSCJ leadership to educate and mobilize
              support for NHTSA traffic safety initiatives. The liaisons also work
              to improve judicial and community outreach and promote
              confidence and trust in the judiciary.
 $75,868.61 (TCTP Tuition Revenue)
        Registration revenue from NCSCJ State Traffic Court
        Programs to be utilized for future traffic safety programming.


                                                                                 13




AJC Funds
As of 12/06


AJC Judicial Improvement Fund (JIF)
 $1,206,979
     Interest-bearing revenue investment fund for the
     Spencer-Grimes Seminar Series (AJC)
     Source of funds: corporations, state contributions
     and tuition




                                                                                 14




                                                                                      49
Tuition-Based Programs
(Ongoing)



Committee on Traffic Court Program
 $27,420: Annual registration revenue
        Generated from the 2006 Seminar Charleston, SC
  $8,150.74: Reserve funds from previous
  programs




                                                         15




Support Funds

Division support funds contain revenue
generated from charitable and educational
activities. These 501(c)(3) funds can only be
used for approved charitable or educational
purposes. The ABA General Counsel’s Office
determines whether a project qualifies.




                                                         16




                                                              50
  Support Fund Balances
  As of 12/06

  Judicial Division                                                   $34,994.76

  AJC                                                                  $2,468.23

  LC                                                                   $6,120.33

  NCALJ                                                               $24,175.96

  NCFTJ                                                                    $0.00

  NCSCJ                                                                 $871.87

  NCSTJ                                                               $16,771.80

  SCMJ                                                                $10,829.31

  Miscellaneous Charges*                                              -$5,000.00

  Total                                                             $96,232.26

*Support fund balances are approximate. Charges are applied to support
funds across the board for publication inventory, package plan marketing,
and credit card services. It is impossible to identify specific charges for the
Division or one of its Conferences.                                          17




                                                                                   51
                       ABA Judicial Division – Judicial Division Record
                                              2006-2007 Production Schedule


Fall 2006 Issue (Vol. 10 Issue 1)

Wednesday ................. August 23                 All articles due to the Conference Editors
Wednesday ................. August 30                 All copy due by Noon to Publications Committee Chair
                                                      No articles accepted after this date
Monday....................September 4                 All copy and edited articles due in to Judicial Division staff office
Friday ......................September 8              Copy sent to printer (request mailtape)
Wednesday ............September 20                    Layout, Design and edits completed; PDF file sent to editors
Friday ....................September 22               Final, edited copy to due Judicial Division staff office
Monday..................September 25                  Copy sent to printer for final run
Friday .......................... October 6           Newsletters mailed from printer
Wednesday ................ October 13                 Newsletters received by members and subscribers

Things to print in this issue:                        Annual Meeting follow-up
                                                      Nominating Committee for upcoming year
                                                      Committee Chairs
                                                      Brief synopsis of Executive Committee minutes

Winter 2007 Issue (Vol. 10 Issue 2)

Wednesday ............ November 15                    All articles due to the Conference Editors
Wednesday ............ November 22                    All copy due by Noon to Publications Committee Chair
                                                      No articles accepted after this date
Monday.................. November 27                  All copy and edited articles due in to Judicial Division staff office
Thursday................ November 30                  Copy sent to printer (request mailtape)
Monday...................December 18                  Layout, Design and edits completed; PDF file sent to editors
Wednesday .............December 20                    Final, edited copy to due Judicial Division staff office
Friday .....................December 22               Copy sent to printer for final run
Friday ........................ January 12            Newsletters mailed from printer
Wednesday ................ January 19                 Newsletters received by members and subscribers

Things to print in this issue:                        Midyear Meeting information
                                                      Annual Meeting Award information – Accepting nominations
                                                      Call for nominations

Spring 2007 Issue (Vol. 10 Issue 3)

Wednesday ...............February 14                  All articles due to the Conference Editors
Wednesday ...............February 21                  All copy due by Noon to Publications Committee Chair
                                                      No articles accepted after this date
Monday.....................February 26                All copy and edited articles due in to Judicial Division staff office
Thursday........................ March 1              Copy sent to printer (request mailtape and complete New Member list)
Monday........................ March 12               Layout, Design and edits completed; PDF file sent to editors
Wednesday ................. March 14                  Final, edited copy to due Judicial Division staff office
Friday ......................... March 16             Copy sent to printer for final run
Friday ......................... March 30             Newsletters mailed from printer
Wednesday ..................... April 4               Newsletters received by members and subscribers




                                                                                                                          52
Things to print in this issue:                 Midyear Meeting follow-up
                                               Results of Nominating Committees
                                               Brief synopsis of executive committees
                                               Annual Meeting preview (schedule, programs, social events)


Summer 2007 Issue (Vol. 10 Issue 4)
Wednesday .......................May 2         All articles due to the Conference Editors
Wednesday .......................May 9         All copy due by Noon to Publications Committee Chair
                                               No articles accepted after this date
Monday............................May 14       All copy and edited articles due in to Judicial Division staff office
Thursday..........................May 17       Copy sent to printer (request mailtape and complete New Member list)
Monday .............................June 4     Layout, Design and edits completed; PDF file sent to editors
Wednesday .......................June 6        Final, edited copy to due Judicial Division staff office
Friday ...............................June 8   Copy sent to printer for final run
Friday ..............................June 22   Newsletters mailed from printer
Wednesday .....................June 29         Newsletters received by members and subscribers

Things to print in this issue:                 More info on Annual Meeting
                                               Section Officers Information



Questions? Contact Kris Berliant 800.238.2667, ext. 5700.




                                                                                                              53
         2007 JUDICIAL CLERKSHIP PROGRAM
                 WALK-INS WELCOME
                                   Hyatt Regency Miami
                                  River Front Hall, Center
                                        Lobby Level

                          Judicial Clerkship Program Schedule
                         Times in red require judicial participation.
                      Other times are optional but strongly encouraged.

Thursday, February 8, 2007
11:45 a.m.    –    1:00 p.m.   Informal Luncheon
 1:15 p.m.    –    1:30 p.m.   Welcome/Introductions
 1:30 p.m.    –    2:45 p.m.   Opening Panel
 2:45 p.m.    –    3:00 p.m.   Introduction to Research Exercise
 3:15 p.m.    –    3:45 p.m.   Students & Judges Discuss Research Exercises (Session #1)
 3:45 p.m.    –   5:30 p.m.    Students work on Research Exercise
 6:30 p.m.    –   8:00 p.m.    ABA Judicial Division Reception

Friday, February 9, 2007
  7:30 a.m.   – 8:30 a.m.      ABA Judicial Division Breakfast
  8:45 a.m.   – 9:30 a.m.      Students & Judges Discuss Research Exercise (Session #2)
  9:30 a.m.   – 10:30 a.m.     Students Continue Research Exercise
10:30 a.m.    – 11:00 a.m.     Travel to Courthouse
11:00 a.m.    – 12:00 p.m.     Oral Arguments
12:00 p.m.    – 12:45 p.m.     Brown Bag Lunch with 7th Circuit Judges
12:45 p.m.    – 1:15 p.m.      Return to Hyatt Regency
 1:15 p.m.    – 2:05 p.m.      How to Get a Judicial Clerkship
 2:05 p.m.    – 2:45 p.m.      Lexis Nexis Presentation
 2:45 p.m.    – 3:45 p.m.      Students & Judges Discuss Research Exercise (Session #3)
 3:45 p.m.    – 5:30 p.m.      Students Complete Work on Research Exercise
 5:45 p.m.    – 7:45 p.m.      Group Dinner – TBD

Saturday, February 10, 2007
 9:00 a.m. – 10:00 a.m.        Students & Judges Discuss Research Exercise (Session #4)
10:15 a.m. – 11:15 a.m.        Panel: Students Question the Judges
             11:15 a.m.        Concluding Remarks
11:30 a.m. – 2:00 p.m.         Spirit of Excellence Awards (ticketed event)
10:00 p.m. – Midnight          Dessert Reception




                                                                                           54
                           Judicial Division
             Standing Committee on Minorities in the Judiciary
                        Midyear Meeting Report
                            February 2007
1. Clerkship Brochure - In the Spring of 2007, the SCMJ plans to launch its revision of
   the clerkship brochure “The Courts: An Excellent Place for Attorneys of Color to
   Launch Their Careers. This brochure is the product of a combined effort with the
   National Association of Law placement. The brochure seeks to enlighten minority
   law students of the benefits associated with a judicial externship or judicial law
   clerkship. Both positions provide individual and rigorous training in legal analysis,
   research and writing. As well, the positions offer an intimate opportunity to observe
   and understand judicial processes and to assist in making those processes most
   effective.

2. Action Plan - New initiatives such as strengthening our relationships with Judicial
   Leaders of Minority Bars continues.

3. Funding for 2007 Programs - The SCMJ will continue to have outreach programs at
   the midyear and annual meetings targeting middle school children. The SCMJ will
   host “Achieving A Diverse Judiciary: The Path to Becoming A Judge at Golden Gate
   University School of Law at the Annual Meeting in San Francisco, CA. The program
   will focus on minority lawyers and the steps they can take to secure an appointment
   or election to the bench. Break out sessions will used to focus attention on the various
   levels of the judiciary so that participants can learn more about the specific process
   they are interested in pursuing. Participants will gain insightful information into the
   judicial selection process and a better understanding as to how the process works and
   how to work the process. Participants will also have an opportunity to participate in a
   mentoring program in which they can partner with a judge for further guidance and
   insight. This program will be a focus of the JD Conferences. Justice Carlos Moreno,
   Associate Justice, Supreme Court of California will be the keynote speaker. A
   reception will follow.

4. Spring Planning Meeting - The Chair of the SCMJ will attend the Spring Planning
    Meeting in Charlotte, North Carolina.

5. Directory of Minority Judges in the United States - The 4th Edition of this
   publication is nearing completion and will be published in 2007.


                                             Respectfully submitted,


                                             Gloria Wilson Shelton, Esquire
                                             Chair



                                                                                              55
    Would you like to be listed in the 4th Edition of
The Directory of Minority Judges in the United States?




                                                         56
                Please complete this form if you would like to be listed in the
         Directory of Minority Judges of the United States
                         4th Edition 2007
Date:
Title:
Name
                   First                       Middle                            Last
Court/Agency:
Building:
Address/PO Box:

                                  City                          State                   Zip
Telephone:                                     Facsimile:
E-mail:
Preferred regional, ethnic or cultural identification (please check one)
( ) African-
American/Black
( ) Asian/Pacific Island                              ( ) Native
                                                      American
                                 (specify)                                        (specify)
( ) Hispanic/Latino                                   ( ) Tribal
                                                      Court
                                  (specify)                                       (specify)
( ) I would like information on purchasing a directory
( ) Member, ABA               ( ) Member, Judicial Division

               Feel free to copy and circulate this form to your minority colleagues
Thank you for completing this questionnaire. The Standing Committee on Minorities in the
Judiciary is currently updating the Directory. You will receive more information soon regarding
its release date, uses, circulation, etc. If you have questions, please contact Gilda Fairley via email
at fairleyg@staff.abanet.org or at 312.988.5689.
                                       Mail this questionnaire to:
                             AMERICAN BAR ASSOCIATION
                                 JUDICIAL DIVISION
                                  321 N. Clark Street
                                  Chicago, IL 60610
                                         Or fax it to 312.988.5709
                                   Or complete it online by visiting us at:
                                  http://www.abanet.org/jd/qform.html




                                                                                                          57
                              February, 2007

  Judicial Outreach Network Midyear Meeting Report

Our goal this year was to take a step back and reorganize our website.
That portion of the goal has been accomplished as we now have an
updated website located on the ABA Judicial Division website at
http://www.abanet.org/jd/judgesnetwork/home.html.

Our second goal, which also has been accomplished, is the formation of a
summary-reporting template whereby interested judges and lawyers can
provide information about their outreach programs. The program will in
turn be accessible by other judges and lawyers searching for programs to
sponsor in their respective areas. The template is on the reverse side of this
report.

The next phase, which begins at the Midyear meeting, will be to appear at
each of the conference business meetings to promote the use of the
website by each of the conference’s members. A committee member will
make a short visit it each of the meetings providing information about our
website as well as requesting that each Conference’s leadership actively
promote the site to their members. Future plans for the promotion of the
site will also be discussed at the Midyear meeting.


With kindest regards, I remain,


Very truly yours,




Douglas J. Saloom
Chair, Judicial Outreach Network




                                                                                 58
            Committee on Traffic Court Program
           Report to 2007 ABA Mid-Year Meeting
                     February 10, 2007


          Submitted by: The Hon. Karen Arnold-Burger, Chair


Over 100 participants attended the 2006 Traffic Court Program in Charleston,
South Carolina. The weather was beautiful and the warm southern hospitality
was abundant.

The newly established Charleston School of Law partnered with the Traffic
Court Program Committee in presenting the seminar and also hosted a
reception for the attendees at the school. Topics covered included the science
and law regarding speed check instruments, search and seizure and Fourth
Amendment rights in traffic cases, judicial ethics, the effects of alcohol in the
human body, drug recognition evidence, immigration consequences of traffic
convictions, legal issues surrounding photo traffic enforcement, judicial
outreach to improve your traffic court and treatment options when sentencing
alcohol and drug offenders. Participant evaluations ranked every speaker and
topic as “above average” with most scoring over 4.5 on a 5.0 scale.

Following the program, the Committee met to examine the participant
evaluations and plan the 2007 program. The 2007 program will be held in
Seattle, Washington in partnership with the Washington University School of
Law. Several new topics are planned including demonstrations of some new
enforcement technology including black boxes, passive alcohol sensors,
alcohol-detecting ankle bracelets and electronic ticket books. The Committee
chose Chicago as the site for the 2008 program, however it was later
determined that hotels and facilities were not available for the dates chosen.
Therefore, the Committee voted to return to New Orleans in 2008. The 2005
program had been scheduled for New Orleans, but was cancelled due to the
hurricane devastation in the area, including at our partner law school at Tulane
University.




                                                                                    59
             Least Understood Branch



The Least Understood Branch (LUB) project is a joint effort of the
Standing Committee on Judicial Independence and the Judicial
Division, with the League of Women Voters (LWV), Justice at
Stake (JAS), and the National Center for State Courts (NCSC) as
participating entities. The LUB project focuses on partnering with
state and local bar associations to carry the message of the
importance of fair and impartial courts in our democracy to every
possible venue in their communities.

The LUB has recently released a DVD, Protecting Our Rights,
Protecting Our Courts, and has prepared a pamphlet titled
Countering the Critics as an aid to speakers in this area as well
as a guide on responding to potentially hostile or critical
questions.

For access to the DVD or the pamphlet, please go to the following
website:
http://www.abanet.org/judind/toolkit/impartialcourts/home.html




                                                                     60
        Call for Nominations
                This award is named in honor of John Marshall,
 fourth Chief Justice of the United States, who is credited with establishing the
        independence of the judiciary and enhancing its moral authority.

                   The John Marshall Award was established by the
              American Bar Association Justice Center to recognize those
             dedicated to the improvement of the administration of justice.

               The sixth annual presentation of the John Marshall Award
                      will take place at the ABA Judicial Division
                        Annual Dinner in Honor of the Judiciary.

        Criteria for Selection
The John Marshall Award may be         Nomination Guidelines                 Nominations and supporting
presented to any individual who has    Nominations should include:           documentation should be sent to:
made a positive national impact on     •   Resume or biographical
the justice system.                        sketch                            ABA Justice Center
                                       •   Description of the                John Marshall Award
Nominees may be non-lawyers as             contribution and impact           321 North Clark Street, 19th Floor
well as lawyers. Eligibility is open   •   Letters of support (limit of 5)   Chicago, IL 60610
to any individual responsible for          for the nomination
extraordinary improvement to the       •   The name of the person(s) or      T: 312.988.5689
administration of justice in the           organization making the           F: 312.988.5709
categories of:                             nomination
     • Judicial Independence
     • Justice System Reform                                                 The deadline for nominations is
     • Public Awareness about                                                        March 16, 2007.
          the Justice System


            This award is made possible with the generous support of LexisNexis.




                                                                                                         61
                                ABA Justice Center
                          John Marshall Award Entry Form
                                  Deadline: March 16, 2007

                                  NOMINATOR INFORMATION:

Name:
Business/Firm:
Address:
City, State, Zip:
Telephone:                    Fax:                        E-mail:
                                     NOMINEE INFORMATION*

Name:
Business/Firm:
Address:
City, State, Zip:
Telephone:                   Fax:                          Email:


    *Nominators are responsible for assuring the nominee is available to attend the award
                 ceremony on Friday, August 10, 2007 in San Francisco.

                                   Nomination Materials Checklist
                     •      Resume or biographical sketch of nominee
                     •      Description of the contribution and impact
                     •      Letters of support for the nomination (limit of 5)
                     •      Entry Form

                    Nominations and supporting documentation should be sent to:
                                       ABA Justice Center
                                      John Marshall Award
                                 321 North Clark Street, 19th Floor
                                       Chicago, IL 60610
                          Telephone: 312.988.5689, Fax: 312.988.5709




                                                                                            62
                  President-Elect Appointment Process
From: William H. Neukom, President-Elect

Date: November 13, 2006


The President-Elect is privileged to fill vacancies on ABA Standing and Special
Committees, Commissions, Working Groups, Task Forces and other ABA entities for the
2007-2008 Association year. To assist my Appointments Committee with this important
process, please recommend candidates for appointment to these entities.

Please note that all recommendations must be made using the on-line nomination form.
The form can be found at http://www.abanet.org/appointments beginning on December 1,
2006.

Please also note that a separate form must be submitted for each person recommended for
a committee appointment.

The deadline for submitting recommendations is March 1, 2007. All recommendations
must be received by that date to ensure inclusion in the decision-making process.

Thank you in advance for the time and effort that you will put into making these
important recommendations. There are a limited number of vacancies to fill, and while all
of the candidates who are suggested cannot be appointed, each recommendation will be
given serious consideration.

If you would like to discuss confidential information related to a particular
recommendation, please feel free to contact the 2007-2008 Appointments Advisory
Committee Chair, Maury Poscover, at (314) 480-1717, or maury.poscover@husch.com.

If you have any questions regarding the on-line form, please contact Megan Potter in the
Office of the President at (312) 988-5103.

The Appointments Committee and I look forward to hearing from you and to your
assistance in this important process for our Association.




                                                                                            63
                      American Bar Association’s
                           National Conference of Federal Trial Judges,
                        Standing Committee on the Judicial Improvements,
                          Standing Committee on Judicial Independence
                                   The Section of Litigation and
                       The Section on Individual Rights and Responsibilities

                                             Present

             Eye of the Storm: Deciding Controversial Cases
                                Saturday, February 10, 2007
                                        2:00 – 4:00 p.m.
                                    Hyatt Regency Hotel
                              400 S.E. 2nd Ave., Miami, Florida
                               Miami Lecture Hall, 3rd Level

This exciting, frank and timely program will focus on practical and personal issues surrounding
judges’ work in high profile cases. The judges will address potential influences on their decision-
making and the unpleasant ramifications caused by controversial decisions.

Panelists:

    •   Circuit Judge Rosemary Barkett, while a Florida Supreme Court Justice and on the
        Eleventh Circuit Court of Appeals, issued controversial opinions reversing certain death
        sentences and significant rulings on bodily integrity and privacy rights.

    •   U.S. District Judge John E. Jones, District Court for the Middle District of
        Pennsylvania, decided the Dover School District case, invalidating its rule requiring the
        teaching of “intelligent design” in public school biology classes.

    •   U.S. District Judge James D. Whittemore, District Court for the Middle District of
        Florida, Tampa Division, denied a motion for a temporary restraining order allowing for
        the removal of Terri Schiavo’s artificial life support.

    •   U.S. District Judge Myron Thompson, District Court for the Middle District of
        Alabama, ruled that the 2.6-ton granite carving of the Ten Commandments that Alabama
        State Supreme Court Chief Justice Roy Moore placed in the state courthouse was an
        unconstitutional endorsement of religion.

Moderator:

Manny Medrano is a lawyer and correspondent for ABC News based in Washington, D.C. Mr.
Medrano covers the United States Supreme Court, provides legal analysis for all ABC News
broadcasts, and writes the legal blog “Order in the Court,” available at www.abcnews.com.
Previously, Mr. Medrano served as an Assistant United States Attorney in Los Angeles and
practiced law specializing in complex civil and white collar criminal cases.



                                                                                                      64
                               CLE PROGRAM
       THE IMPACT OF CRIMINAL AND CIVIL
            APPEALS ON EACH OTHER

  Presented by Judicial Division Appellate Judges Conference, Council of
         Appellate Staff Attorneys, Council of Appellate Lawyers.

      Saturday, February 10, 2007 - 4:00 pm - 5:30 pm
    Hyatt Regency Miami, Miami Lecture Hall, 3rd Level

Questions to be addressed during the panel discussion: How do standards of review,
preservation doctrines, evidence rulings and reversible error concepts from criminal
appeals affect decisions in civil cases and vice versa? How do volumes of criminal cases
affect oral argument and the decision making process?

Moderator:
Arthur England - Partner, Greenburg Traurig, Miami, FL (former Chief Justice, Florida
Supreme Court)

Speakers/Panelists:
Judge Rosemary Barkett - US Court of Appeals, 11th Circuit
Judge Consuelo Maria Callahan - US Courts of Appeals, 9th Circuit
Elliot Scherker- Partner, Greenberg Traurig, Miami, FL




                                                                                           65
                                 Justice Center
                                   Save the Date
                                     As of 1/22/2007




March 30-31, 2007                               August 9-15, 2007
Standing Committee on Judicial                  ABA Annual Meeting
Independence Program                            San Francisco, CA
Ohio State University School of Law             More information: 800/238-2667 x5700
More information: 800/238-2667 x5105
                                                September 6-8, 2007
April 12-15, 2007                               Section Officers Conference
Judicial Division Spring Planning Meeting       Chicago, IL
(by invitation only)                            More information: 800/238-2667 (5705)
Charlotte, NC
More information: 800/238-2667 x5700            September 24-28, 2007
                                                The Fifth National Mediation
April 18-19, 2007                               Training for Judges Program
ABA Day                                         Annapolis, MD
Washington, DC
More information: 800/238-2667 x6259            September 27-29, 2007
                                                AJEI Spencer Grimes
April 25-28, 2007                               Washington, DC
ABA Section of Dispute Resolution
9th Annual Spring Conference                    October 4-7, 2007
Washington, DC                                  NCSTJ
More information: 800/662-1690                  Fall Planning Meeting (invitation only)
                                                Seattle, WA
May 3-4, 2007
UFC Conference
Baltimore, MD
More information: 800/238-2667 x6259

May 16, 2007
Taste of ABA (invitation only)
Chicago, IL

May 16-19, 2007
Leadership Institute (by invitation only)
Memphis, TN
More information: 800/238-2667 x5742




                                                                                          66
                         2007 ABA Day in Washington
                    April 18-19, 2007 · Grand Hyatt Washington · Washington, D.C.
                                        Meeting Schedule (tentative)
                       Website: http://www.abanet.org/poladv/abaday07/home.html
           (All events will take place at the Grand Hyatt Washington unless otherwise noted.)

TUESDAY, April 17
8:00 a.m. – 11:00 a.m.
OPTIONAL SUPREME COURT BREAKFAST/SWEARING-IN CEREMONY
United States Supreme Court
Participants will be selected on a first come, first served basis from among ABA Day participants who
registered before March 31, 2007 and who scheduled their Hill visits in advance. Lawyers interested in
seeking admission to the U.S. Supreme Court must complete the necessary paperwork posted on the Court's
website and forward all completed materials to Julie Strandlie, Esq. American Bar Association
Governmental Affairs Office, 740 15th Street, N.W. Washington, D.C. 20005. Completed applications must
be received at the ABA office on or before March 31, 2007.

5:00 p.m. – 7:00 p.m.
REGISTRATION
Constitution Foyer, Constitution Level (3B)

5:00 p.m. - 7:00 p.m.
SPECIAL EVENT
TBA

7:30 p.m.
EARLY ARRIVERS' DINNER
Via Pacifica, Lobby Level, Grand Hyatt Washington
Join colleagues from around the country for a pre-ABA Day dinner (at individual expense).

WEDNESDAY, April 18
6:30 a.m. – 12:00 p.m.
REGISTRATION
Constitution Foyer, Constitution Level (3B)

7:00 a.m. – 8:00 a.m.
INTERACTIVE LOBBYING WORKSHOP
Constitution Ballroom D/E, Constitution Level (3B)
(Breakfast to be served)
Panelists will engage in a lively and insightful roundtable discussion of effective grassroots lobbying
techniques to both prepare you for your Hill visits and to assist you in maintaining your relationships with
Members and staff--either as a member of the ABA Grassroots Action Team or as a State/Local Bar
official--throughout the year. Both legislative newcomers and Hill veterans will benefit from this session.

8:15 a.m. – 10:00 a.m.
OPENING SESSION
Constitution Ballroom A/B, Constitution Level (3B)
(Breakfast will be served.)
WELCOME TO WASHINGTON!
Stephen N. Zack, Chair, "ABA Day" Planning Committee, Boies Schiller & Flexner, LLP, Miami, Florida
REMARKS BY THE ABA PRESIDENT
Karen J. Mathis, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Denver, Colorado




                                                                                                               67
ISSUES BRIEFING
An in-depth Issues Briefing will address the legislative priorities that will be the primary focus of our Hill
Visits:
     • Legal Services Corporation funding, including adequate annual and supplemental disaster relief
        funding.
     • 1-2 additional issues TBD.
Moderator:
Laurel G. Bellows, Chair, ABA House of Delegates, Bellows & Bellows PC, Chicago, Illinois
Speakers:
The Honorable Deborah G. Hankinson, (former) Justice, Texas Supreme Court, and Chair, ABA Standing
Committee on Legal Aid and Indigent Defendants, Law Offices of Deborah G. Hankinson PC, Dallas, TX.
Other Speakers/Issues TBD.

CLOSING REMARKS/CALL TO ACTION
Karen J. Mathis, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Denver, Colorado

10:00 a.m. – 10:30 a.m.
CONSULTATION SESSION WITH GAO STAFF (Optional)
Wilson/Roosevelt, Constitution Level (3B)
Meet with ABA Governmental Affairs Office (GAO) staff and bar leaders to ask specific questions about
Congress and/or the ABA Day priority issues to better prepare you for the most important part of ABA
Day: your Hill visits.
    • Legal Services Corporation Funding (RSVP to Julie Strandlie)
    • Other issues to be determined.
In addition to the ABA Day priority issues, ABA GAO staff will meet with participants who plan to lobby
targeted Members of Congress on an additional "hot topic."

10:30 p.m. – 5:30 p.m.
HILL VISITS
Capitol Hill
The ABA strongly encourages ABA Day participants to visit as many Members of Congress as time permits,
including your own Senators and Representative, in particular, as well as others with whom you may have
a close relationship. As constituents, it is best if you schedule your own Hill meetings. Advance preparation
is key. If you need assistance, the ABA Governmental Affairs Office (GAO) staff is available to help you.
For more information, contact Julie Strandlie at (202) 662-1764 or by email.
Be sure to schedule your last appointment for no later than 5:15 p.m. to ensure your arrival at the
Reception between 5:45 p.m. and 6:00 p.m. See TRANSPORTATION INFORMATION below.

12:00 p.m. – 5:00 p.m.
"ABA HEADQUARTERS ON THE HILL"
2168 Rayburn House Office Building
Stop by the ABA’s "Headquarters on the Hill" between or after meetings with your Members of Congress.
ABA GAO staff will be available to answer your questions and provide additional briefing materials. You
can also drop off your completed "Congressional Contact" reports and debrief GAO staff on your visits.
Box lunches and refreshments will be served.

6:00 p.m. – 8:00 p.m.
CAPITOL HILL RECEPTION
Library of Congress
James Madison Memorial Building, Montpelier Room
101 Independence Avenue, SE
Washington, D.C. 20540
Join ABA President Karen J. Mathis in honoring Members of Congress for their specific efforts to improve
the American justice system. All Members of Congress and key staff are invited.




                                                                                                                 68
8:15 p.m.
DINE AROUND TOWN
Washington, D.C., offers an extensive array of fine dining. Take advantage of this opportunity to have
dinner with bar colleagues from across the country. Visit www.opentable.com to plan your evening.

THURSDAY, April 19
7:00 a.m. – 8:00 a.m.
Please arrive at the Capitol Hill breakfast before 8:00 a.m. See transportation information below.

8:00 a.m. – 9:30 a.m.
BREAKFAST BRIEFING
Dirksen Senate Office Building, Room G50 (tentative location)
Congressional Leaders share their legislative agendas and schedules for the 109th Congress and discuss
issues of importance to the organized bar.
Remarks:
Karen J. Mathis, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Denver, Colorado
Speakers:
TBD
Closing Remarks:
Stephen N. Zack, Chair, "ABA Day" Planning Committee, Boies Schiller & Flexner, LLP, Miami, Florida

10:00 a.m. – 5:00 p.m.
HILL VISITS, continued
Capitol Hill

12:00 p.m. – 4:00 p.m.
"ABA HEADQUARTERS ON THE HILL"
2168 Rayburn House Office Building
Stop by the ABA’s "Headquarters on the Hill" between or after meetings with your Members of Congress.
ABA GAO staff will be available to answer your questions and provide additional briefing materials. You
can also drop off your completed "Congressional Contact" reports and debrief GAO staff on your visits.
Box lunches and refreshments will be served.

TRANSPORTATION: Taxi/Metro . . .
On Wednesday, April 18, from the Grand Hyatt Washington to Hill Visits: taxis are available at the H and
11th Street hotel entrances. The "Metro Center" subway stop is located in the basement of the hotel. By
Metro, take the Orange or Blue Line to "Capitol South" to the House of Representatives buildings or the
Red Line to "Union Station" to the Senate buildings.
From Hill Visits to the Reception: The Library of Congress's Madison Building is located at the corner of
Independence Avenue and First Street, SE, across the street from the Cannon House Office Building. The
"Capitol South" Metro is located within a block of the Library of Congress, at the corner of First and C
Streets, SE. Return to the Grand Hyatt following the Reception or your dinner by taxi or Metro.
On Thursday, April 19, from the Grand Hyatt to the Breakfast Briefing: the "ABA Shuttle" will depart
from the Grand Hyatt's 11th Street entrance beginning at 7:10 a.m. and will run every 10 minutes. Or you
can take the Red Line Metro to "Union Station" and walk the short distance to the Dirksen Senate Office
Building. Enter the Dirksen Building through the Visitor's Entrance at the corner of First and C Streets, NE.
Return to the Grand Hyatt following your Hill visits by taxi or Metro.
A Capitol Hill map is also included in the 2007 ABA Congressional Directory.

                        ABA DAY IN WASHINGTON 2007 Co-Sponsored by:
                                      ABA Section Officers Conference
                                        ABA Young Lawyers Division
                                   National Association of Bar Executives
                                    National Conference of Bar Presidents
                             Coordinated by the ABA Governmental Affairs Office




                                                                                                                69
                      2007 ABA Annual Meeting San Francisco, CA
                                     Justice Center
                                    Judicial Division
                       Standing Committee on Judicial Independence
                   Standing Committee on Federal Judicial Improvements
                                  Coalition for Justice

    All meetings and programs will take place at San Francisco Marriott unless otherwise noted.
             Per ABA Policy, all meetings are considered open to all attendees

                         Tentative Schedule as of December 29, 2006

*        Depending on Funding/BOG Approval

Wednesday, August 8
8:00am – 5:00pm                  Office (setup)
TBD                              SCJ Outreach Program

Thursday, August 9
9:00am – 12:30pm                 STJ Program
10:00am – 12:00pm                Judicial Outreach Network Committee
12:00pm – 4:00pm                 Office
1:00pm – 3:00pm                  Coalition for Justice Meeting
1:00pm – 5:00pm                  SC on Minorities
1:30pm – 4:30pm                  ADR Program*
3:00pm – 5:00pm                  Committee Meetings
3:00pm – 6:00pm                  Coalition for Justice Roundtable
6:30pm – 8:30pm                  Welcome Reception

Friday, August 10, 2006
7:30am – 10:00am                 Office
7:30am – 9:00am                  Welcome Breakfast
9:00am – 10:00am                 Committee Meetings
9:00am – 12:00pm                 Executive Committee Meetings
                                 Administrative Law Judges
                                 Lawyers Conference
                                 Federal Trial Judges
                                 Specialized Court Judges
                                 State Trial Judges
9:00am – 2:00pm                  SC on Judicial Independence
10:30am – 12:00pm                FTJ Plenary Session
1:00pm – 3:00pm                  State Trial Judges Committee Meetings
1:00pm –5:00pm                   Mentoring/Diversity Program
2:00pm – 4:00pm                  Office
6:30pm                           Annual Dinner in Honor of the Judiciary
                                 Presentation of the John Marshall Award




                                                                                                  70
Saturday, August 11
7:30am – 10:00am      Office
7:30am – 10:00am      Specialized Court Judges Bus. Mtg.
                      Lawyers Conference Bus. Mtg.
8:00am – 11:30am      State Trial Judges Bus. Mtg.
8:00am – 11:30am      Federal Trial Judges Bus. Mtg.
8:00am – 12:00pm      Administrative Law Judges Bus. Mtg.
8:30am – 3:00pm       SC on Judicial Independence
9:00am – 12:00pm      Immigration Joint Program
10:00am – 12:00pm     Judges’ Journal Editorial Board Mtg.
10:00am – 12:00pm     Committee Meetings
12:00pm – 5:00pm      Council Meeting
                      Business Meeting will take begin at 4:00pm
1:00pm – 3:00pm       CAL/AJC Program
2:00pm – 4:00pm       Office
3:00pm – 4:00pm       CAL Executive Committee Meeting
3:00pm – 4:30pm       Science & Technology Joint Program

Sunday, August 12
7:30am – 10:00am      Office
8:00am – 12:00pm      Appellate Judges Executive Cte.
8:00am – 10:00am      New Executive Committee Meetings
                      Administrative Law Judges
                      Specialized Court Judges
                      State Trial Judges
8:00am – 9:00am       Joint Breakfast (LC, FTJ, SCFJI)
9:00am – 11:00am      New Executive Committee Meetings
                      Lawyers Conference
                      Federal Trial Judges
9:00am – 11:00am      Jury Commission Meeting
9:00am – 12:00pm      SC on Federal Judicial Improvements
10:00am – 12:00pm     New Council Meeting
3:00pm – 5:00pm       Division House of Delegates Cte.




                                                                   71
                            American Bar Association
JUDICIAL DIVISION
BYLAWS
                                  Adopted August 2003



ARTICLE I
Name and Purpose
        1.01 This Division shall be known as the Judicial Division of the American Bar
Association.
        1.02 The object of the Division shall be to improve the American judicial system
and to encourage all members of the judiciary, lawyers and others who share a strong
interest in this goal to work toward this common objective.
        1.03 Judge members of the Judicial Division will not be deemed to endorse
positions and policies adopted by the ABA that conflict with a judge's obligation to
comply with the ABA Model Code of Judicial Conduct or the Governing Code of
Judicial Conduct in the Judge's Jurisdiction.

ARTICLE II
Conferences
        2.01 There shall be within the Judicial Division the following six conferences: (a)
National Conference of the Administrative Law Judiciary; (b) Appellate Judges
Conference; (c) Lawyers Conference; (d) National Conference of Federal Trial Judges;
(e) National Conference of Specialized Court Judges; and (f) National Conference of
State Trial Judges.
        2.02 Each Conference shall adopt Bylaws not inconsistent with the Association's
Constitution and Bylaws and the Division Bylaws. The jurisdiction of each Conference
shall be described in its Bylaws. Conference Bylaws become effective when approved by
the Division's Council and by the Association's House of Delegates.
        2.03 Each Conference shall appoint a member (preferably the chair) of its
equivalent Committee to the Standing Committees of the Division. Conference
representatives shall serve annual terms.

ARTICLE III
Members and Associates
        3.01 Members and Associates: Any member, Associate, Judicial Associate or
International Associate of the Association, upon request to the Secretary of the
Association or the Chair of the Division, and upon payment of dues for the current year,
shall be enrolled as a member, an Associate, a Judicial Associate or an International
Associate of the Division respectively.
        3.02 Associate, Judicial Associates and International Associates permitted by the
Bylaws of the Association to become a member may participate in the affairs of the
Division but may not vote or be an officer or Council member.




                                                                                              72
        3.03 Dues: Each member, Associate, Judicial Associate or International Associate
of the Division shall, upon enrollment, pay to the American Bar Association annual
division dues of thirty-five dollars ($35.00) unless eligible for a special dues program.
Any member, Judicial Associate or International Associate of this Division whose annual
Division dues shall be more than six months past due shall thereupon cease to be a
member, an Associate, a Judicial Associate or an International Associate of the Division.
    3.04 Members of the Lawyers Conference may join Judicial Conferences subject to
    Division policy.

ARTICLE IV
Officers
        4.01 The Officers shall be a Chair, a Chair-Elect, and a Vice-Chair.
        4.02 The work of the Division shall be accomplished through the Division
Council. The Council shall consist of the following voting members: Chair, Chair-Elect,
Vice-Chair, and immediate past chair of JD; chairs of the following conferences:
Administrative Law Judiciary, Appellate Judges, Federal Trial Judges, Lawyers
Conference, Specialized Court Judges, State Trial Judges; and Chair of the Board of
Trustees of the National Judicial College. Nonvoting members of the Council shall be:
the President of the Conference of Chief Justices; the Judicial Member-at-Large of the
Board of Governors; the Chair of the Traffic Court Program; the Liaison from the Law
Student Division; and the Liaison from the Young Lawyers Division.
        4.03 At each annual meeting of the Division there shall be elected a Vice-Chair
whose term shall commence at the close of the annual meeting of the Division at which
such election occurred and end at the close of the next succeeding annual meeting or until
a successor has been elected and qualified. The Chair-Elect shall automatically succeed
to the office of Chair and the Vice-Chair shall automatically succeed to the office of
Chair-Elect at the close of their regular terms as Chair-Elect and Vice-Chair respectively.
If the Chair-Elect shall be unwilling or unable to accept the office of Chair, or if the
office of Chair-Elect shall be vacant, then a Chair shall be elected by the members of the
Division present at the annual meeting.
        4.04 At the annual meeting in 1996, and in each succeeding third year, each
judicial conference of the Division shall elect its Delegate to the Association's House of
Delegates for a term of three Association years. Upon the nomination of the Lawyers
Conference, the council of the division shall elect a division delegate from the division to
the House of Delegates for a term of three years. One of such delegates may be
designated spokesperson for the Division by the Division Chair to present the Division's
position in the House of Delegates on behalf of the Division.
        4.05 Executive Committee: The Chair, the Chair-Elect, the Vice-Chair of the
Judicial Division and the Chairs of the following conferences: Administrative Law
Judges, Appellate Judges, Federal Trial Judges, Lawyers, Special Court Judges and State
Trial Judges, shall constitute the Executive Committee of the Division.




                                                                                               73
ARTICLE V
Nominating Committee
         5.01 There shall be a Nominating Committee, composed of the Immediate Past
Chairs of each of the six conferences and chaired by the Immediate Past Chair of the
Division. If a past chair of a conference or the division is not available or is ineligible, a
substitute shall be designated by the conference or the council respectively. The names of
the Nominating Committee members shall be duly published in the Division's official
publication.
         5.02 The duties of the Nominating Committee shall be to make nominations of
the Division for the offices of Chair, Chair-Elect (if such offices are to be filled by
election for want of automatic succession) and Vice-Chair to succeed those individuals
whose terms will expire at the close of the Annual Meeting. The Nominating Committee
shall also make nominations for the Division's representative to the Association's
Nominating Committee in accordance with sec. 7.10. The Nominating Committee shall
further nominate the Association's judicial member at large on the Board of Governors at
the expiration of the incumbent's term. The Nominating Committee shall make
nominations as necessary to fill vacancies or unexpired terms of all of the Division
offices. The Nominating Committee shall make recommendations for members of the
National Judicial College Board of Trustees for submission to the ABA Board of
Governors. The report of the Nominating Committee shall be made and duly published at
least sixty (60) days prior to the Annual Meeting in the Division's official publication if
nominees shall have consented to serve.
         5.03 Additional nominations may be made by petition signed by at least fifteen
(15) Division members from no less than 3 conferences and filed with Division's Staff
Director at least forty-five (45) days prior to the Annual Meeting. Members of the
Council and conference executive committees shall be notified of nominations by petition
at least fifteen (15) days prior to the Annual Meeting.
         5.04 Nominations may not be made from the floor at the time of elections.

ARTICLE VI
Duties of Officers
        6.01 Chair: The Chair shall preside at all meetings of the Division and of the
Council. The Chair shall formulate and present at each annual meeting of the Association
a report of the work of the Division. The Chair shall perform such other duties and acts as
usually pertain to the office.
        6.02 Chair-Elect: Upon the death, resignation, or during the disability of the Chair
or upon the Chair's refusal to act, the Chair-Elect shall perform the duties of the Chair for
the remainder of the Chair's term except in case of the Chair's disability, and then only
during so much of the term as the disability shall continue. The Chair-Elect shall serve as
Chair of the Finance and Non-Dues Revenue Committee.
        6.03 The Vice-Chair of the Division shall serve as Chair of the Planning
Committee and work with each of the Standing Committees of the Division. In the event
that the Chair-Elect must succeed the Chair for the remainder of the Chair's term under
the provisions of 6.02, the Vice-Chair shall assume the position of Chair-Elect and carry
out those duties.




                                                                                                 74
ARTICLE VII
Duties and Powers of the Council
        7.01 The Council shall have general supervision and control of the affairs of the
Division subject to the provisions of the Constitution and Bylaws of the Association and
the Bylaws of this Division. It shall, especially authorize all commitments or contracts
entailing the payment of money, and shall authorize the expenditures of all monies
appropriated for the use or benefit of the Division. It shall not, however, authorize
commitments or contracts entailing the payment of more money during any fiscal year
than the amount which shall have been previously appropriated to the Division for such
fiscal year. The council shall fill any unexpired terms as necessary. The council shall
prepare and maintain a manual on policy and procedures for the operation of the division.
        7.02 The Council shall have the following Standing Committees, in addition to
other committees designated by the Judicial Division Chair:
       1.     Finance and Non-Dues Revenue Committee
              (Chaired by Chair-Elect of Division)
       2.     Strategic Planning
              (Chaired by Chair-Elect of Division. Membership of the Committee shall
              include the Vice-Chair of the Division, the Chairs-elect and Vice-Chairs
              of each Conference or their designees. The Division Chair and Immediate
              Past Chair shall serve as ex officio members.)
       3.     Nominating
              (Chaired by Immediate Past Chair of the Division)
       4.     Membership
       5.     Minorities
       6.     Publications
       7.     Traffic Court Program Committee
        7.02 (a) The Traffic Court Program Committee’s mission shall be to improve the
operations of the traffic courts by providing an annual education program for judges and
by providing current information as to issues affecting traffic courts and their judges.
             (b) The Traffic Court Program Committee shall consist of eight (8) Judicial
Division members, each of whose term expires upon the adjournment of the fourth annual
meeting following appointment. Members shall be eligible for one additional
appointment of four years. Members will be appointed and re-appointed by the Chair of
the Judicial Division with recommendations received from the Traffic Court Program
Committee Chair. There will be a Vice-Chair and Chair of the committee who will each
serve two-year terms. The Vice-Chair will be appointed by the Chair of the Judicial
Division and drawn from among the membership of the committee. The Vice-Chair shall
automatically succeed to the position of Chair upon the completion of the two-year term.
A member serving as Vice-Chair or Chair shall be eligible for a third four-year term.
        In the original appointment of the eight-member committee, the Chair shall
designate two (2) members to serve until the adjournment of the first annual meeting
following their appointment, two (2) to serve until the adjournment of the second annual
meeting following their appointment, two (2) to serve until the adjournment of the third
annual meeting following their appointment and two (2) to serve until the adjournment of
the fourth annual meeting following their appointment.



                                                                                            75
         The Chairs of the Standing Committees will be appointed by the Chair of the
Division and drawn from among the membership of the Committee. Any special task
force, liaison or ad hoc committee of the Judicial Division may be appointed by the Chair
of the Division for the duration of his or her term. Cross Conference Committees are
committees composed of members from more than two of the Division’s Conferences
and are supported by the participating Conferences. The Publications Committee shall
constitute the Judges’ Journal Editorial Board. Each Conference shall have one
Publications chair who shall serve on the Publications Committee and the editorial board
of The Judges’ Journal.
                7.03 The Council, during the interim between the annual meetings of the
Division, shall have the powers and duties set forth in 7.01 of this Article VII. In addition
thereto, the Council shall have full power and authority to do all acts and perform all
functions which the Division itself might perform.
                7.04 All binding action of the Council shall be by a majority vote.
         7.05 Members of the Council shall vote in person. Members may abstain formally
on the record. When a Council member is unable to attend a regularly scheduled meeting
of the Council, the chair of each conference is authorized to designate a representative to
substitute for the Conference Chair and to vote in the place of that chair in the event that
the chair is temporarily unable to participate in the meeting. The Chair, Immediate Past
Chair, Chair-Elect and Vice-Chair of the Division, and the Chair of the Board of Trustees
of the National Judicial College may not designate substitutes to vote in their stead.
         7.06 Between required meetings, the Chair of the Division may, and upon the
request of any member of the Council shall, submit or cause to be submitted in writing
any proposition upon which the Council may be authorized to act to each of the members
of the Council. The members of the Council may vote upon such propositions so
submitted, by communicating their vote in writing over their respective signatures, to the
Staff Director who shall record in the minutes each proposition so submitted, when, how,
at whose request same was submitted, and the vote of each member of the Council
thereon, and keep on file such written and signed votes. If the votes of a majority of the
members of the Council so recorded shall be in favor of such proposition or if such
majority shall be against such proposition, such majority vote shall constitute the binding
action of the Council.
         7.07 Between required meetings, the Chair, when he or she deems it advisable,
may call meetings of the whole Council or of the Executive Committee only. If the
Executive Committee only be called, it may take any action which may be taken by the
Council, provided that such action shall promptly be reported by the Staff Director of the
Division to the members of the Council. The Council, within twenty days after mailing of
such report, may disaffirm an action taken by the Executive Committee, by a majority
vote of the members of the whole Council communicated to the Staff Director by mail.
         7.08 The Council of the Division shall meet on call of the Chair at or about the
time of the annual and midyear meetings of the Association to dispatch any necessary
business. At the close of each annual meeting of the Division, the Council shall meet on
call of the new Chair to formulate a program for the coming year and dispatch any other
necessary business.




                                                                                                76
         7.09 Beginning in 1985, and in each succeeding third year, the Council shall
submit a nomination for Judicial Member-at-Large of the Board of Governors to the
Division's representative to the Association's Nominating Committee. The selection of the
nominee shall be made by the Council upon the recommendation of the Division’s
Nominating Committee, with due regard for the eligibility requirements for election to the
Board of Governors.
         7.10 The Council, upon recommendation by the Division nominating committee,
 shall select a representative to serve on the Association's Nominating Committee with
 due regard for eligibility requirements.
 ARTICLE VIII
 Staff
         8.01 The Staff Director designated by the executive director of the ABA shall be
 the custodian of all books, papers, documents, and other property of the Division except
 money, although he or she may permit such property of the Division as he or she deems
 appropriate to remain in the actual custody of other Association staff; shall keep, or cause
 to be kept, a true record of the proceedings of all meetings of the Division, the Council,
 and the Executive Committee; shall perform such other duties and acts as usually pertain
 to the role of the Staff Director; and shall generally assist the Chair, the officers, and the
 Council in attending to the business of the Division.
 ARTICLE IX
 Meetings of Division
         9.01 The annual meeting of the Division shall be held at or about the time of the
 annual meeting of the Association, in the same city or place as such annual meeting of
 the Association, with such programs and order of business as may be arranged by the
 Council.
         9.02 Special meetings of the Division may be called by the Chair upon approval
 of the Council, at such time and place as the Council may determine.
         9.03 The members of the Division present at any meeting shall constitute a
 quorum for the transaction of business.
         9.04 All binding action of the Division shall be by a majority vote of the members
 present.
 ARTICLE X
 Publications
         10.01 The official publication of the Division shall be published by the Division
 under the supervision of the Board of Editors. The Publications Committee shall
 constitute the Board of Editors. The Chair, the Chair-Elect, and Vice-Chair of the
 Division shall be ex officio members of the Board of Editors. The chair of the
 Publications Committee shall serve as Chair of the Board of Editors.
     10.02 There shall be an editor who shall be appointed with the advice and consent of
 the Board of Editors and who shall be given the same administrative support as the other
 ABA publication chairs. If possible, such editor shall be selected and appointed from
 among the staff at the American Bar Center.




                                                                                                  77
     10.03 The headquarters for the official publication shall be located at the American
Bar Center in Chicago, Illinois.
      10.04 Authority of Board of Editors: The Board of Editors shall have general
administrative authority for the publication, and shall adopt rules of governance not
inconsistent with the Division Bylaws. Rules of governance for the Board of Editors
become effective when approved by the Council, and may be amended by the Council
from time to time.
     10.05 Revenues: The revenues of the publication shall be credited to the appropriate
account of the Division, from which the expenses shall be paid.
     10.06 Other Publications: Other publications of the Division shall be issued and
distributed on such terms as the Publications Committee prescribes with the advice and
consent of the Council.
     10.07 Copyright: All publications of the Division shall be copyrighted in the name of
the American Bar Association.
     10.08 All printing for the Division or for the Council or any committee of the
Division shall be done under the supervision of the headquarters office of the
Association.
ARTICLE XI
Miscellaneous Provisions
    11.01 The Fiscal Year of the Division shall be the same as that of the Association.
    11.02 All bills incurred by the Division, before being forwarded to the Treasurer of
the Association for payment, shall be approved by the Chair or by the Staff Director if the
Chair shall so direct.
    11.03 No salary or compensation shall be paid to any officer, Council member, or
member of a committee, but they shall be entitled to reimbursement of expenses, as are
authorized under the Association's Expense Reimbursement Rules.
    11.04 Any action by this Division must be approved by the Association before the
same becomes effective as the action of the Association. Any resolution adopted or action
taken by this Division may on request of the Division be reported by the Chair of the
Division to the annual meeting of the Association for the Association's action thereon.
ARTICLE XII
Amendments
      These Bylaws may be amended at any meeting of the Division by majority vote of
  the members of the Division present and voting, provided that such proposed
  amendment shall first have been mailed to each member of the Division at least sixty
  (60) days prior to any meeting at which such vote shall be taken. No amendment or
  amendments so adopted shall become effective until approved by the House of
  Delegates of the Association.

8/2003




                                                                                              78
TAB K




        79
                AMERICAN BAR ASSOCIATION
              COMMISSION ON HOMELESSNESS AND POVERTY

                                 RECOMMENDATION
RESOLVED, That the American Bar Association opposes the implementation and
enforcement of law and policy that:
   1. Punish persons experiencing homelessness for carrying out life-sustaining
       practices or acts in public spaces when no alternative private spaces are available;
   2. Are enforced against persons experiencing homelessness to a greater extent than
       others who engage in the same practice or act; or
   3. Punish persons for providing food, shelter, or other critical assistance to people
       who are homeless.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local courts, prosecutors, defense counsel, and probation and parole
officers to consider, when making policy and practice decisions related to criminal
justice, the problems faced by homeless individuals who may be forced to engage in life-
sustaining practices in public spaces because no alternative private spaces are available.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local bar associations to work in cooperation with courts, lawmakers, law
enforcement, advocates, service providers and people experiencing homelessness to:
       1.     Revise laws and policies to recognize the problems faced by the homeless
              when the demand for shelter, housing and services exceeds the supply; and
       2.     Support efforts to increase shelter, housing and services to adequately
              address the needs of homeless individuals.




                                                                                              80
                                            REPORT


Introduction
Each year, 3.5 million Americans experience homelessness, 800,000 on any given day. 1
More than a third are children. And according to a 2005 survey by the U.S. Conference of
Mayors, the crisis is actually worsening.

According to the U.S. Conference of Mayors Hunger and Homelessness Survey for 2005,
nearly one in six homeless persons and one in three homeless families requesting
emergency shelter did not receive it and in over 70% of cities surveyed, 2 the number of
requests are increasing. 3 Since 2005, we have also seen additional complexity added to
an already overburdened system from the compelled migrations following last year’s
Gulf Coast storms.

While our nation continues to address the affordable housing shortage and the assistance
such families require, there are more immediate needs facing those who live on the street,
often in a literal struggle to survive. Our country should do all that it can to present them
with opportunities to move towards self-sufficiency and into permanent shelter. It is
therefore unconscionable that our nation would erect barriers and otherwise
disproportionately target this very vulnerable population.
The lack of available shelter space - a situation made worse by the Gulf Coast hurricanes
- leaves many homeless persons with no choice but to struggle to survive on the streets of
our cities.

An unfortunate trend in cities around the country over the past 25 years has been to turn
to the criminal justice system to respond to people living in public spaces. This trend
includes measures that target homeless persons by making it illegal to perform life-
sustaining activities in public. These measures prohibit activities such as
sleeping/camping, eating, sitting, and begging in public spaces, usually including
criminal penalties for violation of these laws.




1
  Burt et al., Helping America’s Homeless 49-50 (The Urban Institute Press, 2001).
2
  U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 24-City
Survey 5 (Dec. 2005).
3
  Id.


                                                                                                         81
Types of Criminalization Measures
The criminalization of homelessness takes many forms, including:
   •   Legislation that makes it illegal to sleep, sit, or store personal belongings in public
       spaces in cities where people are forced to live in public spaces due to a lack of
       emergency shelter and services;
   •   Selective enforcement of more neutral laws, such as loitering or open container
       laws, against homeless persons;
   •   Sweeps of city areas where homeless persons are living to drive them out of the
       area, frequently resulting in the destruction of those persons’ personal property,
       including important personal documents and medication; and
   •   Laws that punish people for begging or panhandling to move poor or homeless
       persons out of a city or downtown area.
Criminalization Measures Have Increased
City ordinances frequently serve as a prominent tool to criminalize homelessness. The
National Law Center on Homelessness & Poverty (NLCHP) and the National Coalition
for the Homeless (NCH) issued a report on the criminalization of homelessness in
January 2006, entitled “A Dream Denied: The Criminalization of Homelessness in U.S.
Cities.” Of the 224 cities surveyed for the report:
   •   28% prohibit “camping” in particular public places in the city and 16% had
       citywide prohibitions on “camping.”
   •   27% prohibit sitting/lying in certain public places.
   •   39% prohibit loitering in particular public areas and 16% prohibit loitering
       citywide.
   •   43% prohibit begging in particular public places; 45% prohibit aggressive
       panhandling and 21% have city-wide prohibitions on begging.

The trend of criminalizing homelessness appears to be growing. Of the 67 cities surveyed
in both NLCHP and NCH’s 2002 and 2006 reports:

   •   There was a 12% increase in laws prohibiting begging in certain public places and
       an 18% increase in laws that prohibit aggressive panhandling.
   •   There was a 14% increase in laws prohibiting sitting or lying in certain public
       spaces.
   •   There was a 3% increase in laws prohibiting loitering, loafing, or vagrancy laws.
Another trend documented in the report is an increase in city efforts to target homeless
persons indirectly by placing restrictions on providers serving food to poor and homeless
persons in public spaces. Las Vegas just recently passed a law that prohibits sharing food
with “indigent” people in public parks. Orlando also recently passed a law that requires
groups wishing to share free food with 25 or more people in downtown parks to purchase
a permit from the City’s parks department and limits the number of times a group may do
so to only two times a year. Both of these laws are currently being challenged in federal
court.



                                                                                                 82
While cities are cracking down on homeless persons living in public spaces, cities do not
have adequate shelter to meet the need, according to the latest U.S. Conference of
Mayors Hunger and Homelessness report:
    •   71% of the 24 cities surveyed by the U.S. Conference of Mayors reported a 6%
        increase in requests for emergency shelter.
    •   14% of overall emergency shelter requests went unmet and 32% of emergency
        shelter requests by homeless families went unmet in cities surveyed.
Measures that criminalize homelessness are counterproductive, and may violate the
Constitution.
Measures that criminalize homelessness do not make sense from a policy standpoint.
Laws that make it difficult for homeless persons to stay in downtown areas of cities force
homeless persons away from crucial services and outreach. When a homeless person is
arrested under one of these laws, he or she develops a criminal record, making it more
difficult to obtain employment or housing. Further, criminalizing homelessness is an
inefficient allocation of resources. It costs more to incarcerate someone than it does to
provide supportive housing. In a nine-city survey of supportive housing and jail costs, jail
costs were on average two to three times the cost of providing supportive housing - a
solution that actually works in ending homelessness. 4
Criminalization measures also raise troubling constitutional questions. For example, the
Ninth Circuit recently ruled that enforcement of a Los Angeles ordinance that makes it a
crime to sit, sleep, or lie down in public spaces throughout the entire City violated
homeless persons’ Eighth Amendment rights. 5 Since Los Angeles has almost 50,000
more homeless people than available shelter beds, homeless persons must engage in basic
human acts such as sitting, lying down, and sleeping in public. Thus, the Ninth Circuit
ruled that punishment for such behavior violates the Eighth Amendment right to be free
from cruel and unusual punishment. 6 Ten years earlier, the court in Pottinger v. City of
Miami came to a similar conclusion that punishing homeless people for conducting life-
sustaining activities, such as sleeping, in public when no shelter space was available
violated their right to be free from cruel and unusual punishment. 7
Courts have also found constitutional problems with anti-panhandling laws. The Second
Circuit found a New York law banning begging violated the First Amendment right to
free speech. The court held that begging constitutes expressive conduct and no
compelling government interest was served by prohibiting those who beg peacefully from
communicating with their fellow citizens. The court further held that even if the state had
such an interest, a statute banning all begging was not narrowly tailored, not content-
neutral, and left open no alternative channels of communication “by which beggars can
convey their messages of indigency.” 8


4
  See Lewin Group, “Costs of Serving Homeless Individuals in Nine Cities: Chart Book,” (2004) available
at http://documents.csh.org/documents/ke/csh_lewin2004.PDF.
5
  Jones v. City of Los Angeles, 2006 WL 988301 (9th Cir. 2006).
6
  Id.
7
  76 F.3d 1154 (11th Cir. 1996).
8
  Loper v. New York City Police Department, 999 F.2d 699 (2nd Cir. 1993).


                                                                                                          83
Constructive Alternatives to Criminalization
While many cities engage in practices that exacerbate the problem of homelessness by
pursuing criminalization measures, more constructive approaches do exist in some cities
around the country. The following examples can serve as more constructive approaches
to homelessness:
   •    Broward County, FL. The Taskforce for Ending Homelessness, Inc., a not-for-
       profit agency that provides outreach, education, and advocacy services for the
       homeless population in Broward County, has partnered with the Ft. Lauderdale
       police department to create an outreach team made up of police officers and a
       civilian outreach worker who is formerly homeless. In its five years of operation,
       the Homeless Outreach Team has had over 23,000 contacts with homeless
       individuals and has placed 11,384 people in shelters. Estimates suggest that there
       are at least 2,400 fewer arrests each year as a result of the Homeless Outreach
       Team.

   •   Philadelphia, PA. Philadelphia has been able to dramatically reduce the number
       of people living on the streets in its downtown area by dedicating additional
       resources to affordable housing, shelter space, services, and, importantly,
       outreach. The Philadelphia model does not rely on arrests and citations as a means
       to achieving its goals. In fact, a police protocol in place in the city provides that
       police cannot arrest a homeless person for violating the city’s sidewalk regulation
       if no shelter space is available.

   •   Ohio. In Ohio, the three largest cities - Columbus, Cleveland, and Cincinnati -
       fund teams of trained workers to go out under the bridges and visit the
       encampments near the rivers to assist those outside the service system. The
       critical component to the success of these programs is that they do not put a lot of
       restrictions on the assistance that they are offering and offer help at non-
       traditional hours when other services are closed, providing a vital link between
       mainstream services and a population that resists congregate living.

   •   Washington, DC. The downtown business community in Washington, D.C.,
       created a day center for homeless people who may not have anywhere to go
       during the day when shelters are closed. Through the Downtown D.C. Business
       Improvement District, business owners fund this day center that can serve up to
       260 people per day, with indoor seating, laundry, showers, and a morning meal.

Conclusion
The American Bar Association has a long history of promoting access to justice through
policy based advocacy on behalf of homeless and/or impoverished people; through
urging for increased funding for legal services organizations; through educating members
of the bar as to the plight of homeless and impoverished people and encouraging the legal
community to make a commitment to providing pro bono legal services; and through
supporting and fostering replication of homeless courts—an innovative response to the


                                                                                               84
criminalization of homelessness that removes legal barriers for people experiencing
homelessness so they may become self-sufficient. This policy reaffirms the Association’s
commitment by highlighting the need to use constructive approaches to address
homelessness rather than punishing individuals for carrying out life-sustaining practices
or acts in public spaces when no alternative private spaces are available and punishing
good Samaritans for providing food, shelter, or other critical assistance to people who are
homeless. The ABA’s support of this policy illustrates the Association’s commitment to
defending liberty and pursuing justice.

                                             Respectfully submitted,

                                             Casey Trupin, Chair
                                             Commission on Homelessness & Poverty
                                             February 2007




                                                                                              85
                GENERAL INFORMATION FORM
Submitting Entity:    Commission on Homelessness and Poverty

Submitted By:         Casey Trupin, Chair

1.     Summary of Recommendation(s).
       The recommendation states the American Bar Association’s opposition to the
       implementation and enforcement of law and policy that: (1) punish persons
       experiencing homelessness for carrying out life-sustaining practices or acts in
       public spaces when no alternative private spaces are available; (2) are enforced
       against persons experiencing homelessness to a greater extent than others who
       engage in the same practice or act; or (3) punish persons for providing food,
       shelter, or other critical assistance to people who are homeless. The
       recommendation also calls on the legal community to collaborate to (1) revise
       laws and policies to recognize the problems faced by the homeless when the
       demand for shelter, housing and services exceeds the supply; and (2) support
       efforts to increase shelter, housing and services to adequately address the needs of
       homeless individuals.

2.     Approval by Submitting Entity.
       Approved by the Commission on Homelessness and Poverty on November 10,
       2006.

3.     Has this or a similar recommendation been submitted to the House or Board
       previously?
       No.

4.     What existing Association policies are relevant to this recommendation and how
       would they be affected by its adoption?
       The ABA has a history of supporting initiatives and legislation concerning
       homeless people and access to justice, including policy in support of an increase
       in the availability of affordable transitional and permanent housing (housing and
       community economic development, 1999 Annual Meeting; affordability and
       availability of housing, 1995 Annual Meeting; and funding for public housing,
       1992 Annual Meeting), as well as policy in support of access to justice and legal
       aid for indigent people (legal representation for indigent defendants, 1998 Annual
       Meeting; access to justice, 1995 Midyear Meeting; free legal representation to
       those at risk of becoming homeless, 1994 Annual Meeting; indigent defense
       services, 1991 Midyear Meeting; equal access to justice, 1990 Annual Meeting).
       The Association has also been instrumental in fostering the replication of
       homeless courts across the country through its policy development and technical
       assistance efforts (homeless courts, 2003 Midyear; homeless courts, 2006
       Annual).



                                                                                              86
     This policy reaffirms the Association’s commitment by highlighting the need to
     use constructive approaches to address homelessness rather than punishing
     individuals for carrying out life-sustaining practices or acts in public spaces when
     no alternative private spaces are available and punishing good Samaritans for
     providing food, shelter, or other critical assistance to people who are homeless.
     The ABA’s support of this policy illustrates the Association’s commitment to
     defending liberty and pursuing justice.

5.   What urgency exists which requires action at this meeting of the House?
     As the number of homeless men, women and children continues to increase,
     communities are becoming exasperated as to how to address the problem of
     homelessness. Many communities employ criminalization efforts that ultimately
     result in blanketing homeless people with citations for “quality of life”
     misdemeanor offenses—even when these communities lack adequate shelter and
     services to meet the need. The inability of homeless people to pay fines coupled
     with the fear of incarceration results in their failure to appear in court, which
     further compounds the fines and custody issues. Perhaps more importantly, the
     outstanding warrants preclude homeless people from accessing vital services such
     as housing, public assistance, treatment for mental health and/or substance abuse
     problems, and employment. Furthermore, the trend of criminalizing homelessness
     appears to be growing, including increasing efforts to target homeless persons
     indirectly. For example, Las Vegas just recently passed a law that prohibits
     sharing food with “indigent” people in public parks. Through our network of state
     and local bar associations, the ABA can play an instrumental role in encouraging
     constructive approaches to address homelessness rather than punishing
     individuals for carrying out life-sustaining practices or acts in public spaces when
     no alternative private spaces are available.

6.   Status of Legislation. (If applicable)
     N/A

7.   Cost to the Association. (Both direct and indirect costs)
     There is no direct cost to the Association.

8.   Disclosure of Interest. (If applicable)
     N/A




                                                                                            87
9.    Referrals.
      The recommendation has been referred to the following ABA entities:

             Commission on Domestic Violence
             Commission on Effective Criminal Sanctions
             Commission on Mental and Physical Disability Law
             Criminal Justice Section
             Forum on Affordable Housing
             Government and Public Sector Lawyers Division
             Judicial Division
             Section of Individual Rights and Responsibilities
             Section of State and Local Government Law
             Senior Lawyers Division
             Standing Committee on the Delivery of Legal Services
             Standing Committee on Legal Aid and Indigent Defendants
             Standing Committee on Pro Bono and Public Service
             Standing Committee on Substance Abuse
             Young Lawyers Division

10.   Contact Person. (Prior to the meeting)
      Casey Trupin, Chair
      Columbia Legal Services
      101 Yesler Way, Suite 300
      Seattle, WA 98104-2552
      Tel: (206) 464-5936 ext. 239
      Fax: (206) 382-3386
      E-mail:casey.trupin@columbialegal.org

      Amy Horton-Newell, Staff Director
      American Bar Association
      Commission on Homelessness and Poverty
      740 15th Street, NW
      Washington, DC 20005
      Tel: (202) 662-1693
      Fax: (202) 638-3844
      E-mail: hortona@staff.abanet.org

11.   Contact Person. (Who will present the report to the House)
      Casey Trupin, Chair
      Columbia Legal Services
      101 Yesler Way, Suite 300
      Seattle, WA 98104-2552
      Tel: (206) 464-5936 ext. 239
      Fax: (206) 382-3386
      E-mail:casey.trupin@columbialegal.org




                                                                            88
                                  EXECUTIVE SUMMARY


Summary of Recommendation:

       The recommendation states the American Bar Association’s opposition to the
       implementation and enforcement of law and policy that: (1) punish persons
       experiencing homelessness for carrying out life-sustaining practices or acts in
       public spaces when no alternative private spaces are available; (2) are enforced
       against persons experiencing homelessness to a greater extent than others who
       engage in the same practice or act; or (3) punish persons for providing food,
       shelter, or other critical assistance to people who are homeless. The
       recommendation also calls on the legal community to collaborate to (1) revise
       laws and policies to recognize the problems faced by the homeless when the
       demand for shelter, housing and services exceeds the supply; and (2) support
       efforts to increase shelter, housing and services to adequately address the needs of
       homeless individuals.

Summary of the Issue Which the Recommendation Addresses:

       The recommendation addresses the growing trend of communities turning to the
       criminal justice system to respond to homelessness, including measures that target
       homeless persons by making it illegal to perform life-sustaining activities in
       public - even when no alternative private spaces are available due to lack of
       shelter and services. The recommendation addresses another trend: the increase in
       city efforts to target homeless persons indirectly by placing restrictions on
       providers serving food to poor and homeless persons in public spaces. Las Vegas
       just recently passed a law that prohibits sharing food with “indigent” people in
       public parks. Orlando also recently passed a law that requires groups wishing to
       share free food with 25 or more people in downtown parks to purchase a permit
       from the City’s parks department and limits the number of times a group may do
       so to only two times a year. Both of these laws are currently being challenged in
       federal court.

Explanation of How the Proposed Policy Position Will Address the Issue:

       This recommendation would allow the Association to support constructive
       approaches to address homelessness rather than punishing individuals for carrying
       out life-sustaining practices or acts in public spaces when no alternative private
       spaces are available and punishing good Samaritans for providing food, shelter, or
       other critical assistance to people who are homeless.

Summary of Any Minority Views or Opposition Which Have Been Identified:

       None to date.




                                                                                              89
                          AMERICAN BAR ASSOCIATION
                          CRIMINAL JUSTICE SECTION

                    REPORT TO THE HOUSE OF DELEGATES

                                 RECOMMENDATION

     RESOLVED, That the American Bar Association urges federal, state, local, and
  territorial governments to ensure that prisoners are afforded meaningful access to the
 judicial process to vindicate their constitutional and other legal rights and are subject to
            procedures applicable to the general public when bringing lawsuits.

        FURTHER RESOLVED, That the American Bar Association urges Congress to
repeal or amend the Prison Litigation Reform Act (PLRA) as follows:

       1. Repeal the requirement that prisoners (including committed and detained
          juveniles and pretrial detainees, as well as sentenced prisoners) suffer a
          physical injury in order to recover for mental or emotional injuries caused by
          their subjection to cruel and unusual punishment or other illegal conduct;

       2. Amend the requirement for exhaustion of administrative remedies to require
          that a prisoner who has not exhausted administrative remedies at the time a
          lawsuit is filed be permitted to pursue the claim through an administrative-
          remedy process, with the lawsuit stayed for up to 90 days pending the
          administrative processing of the claim;

       3. Eliminate the restrictions on the equitable authority of federal courts in
          conditions-of-confinement cases;

       4. Allow prisoners who prevail on civil-rights claims to recover attorney's fees
          on the same basis as the general public in civil-rights cases;

       5. Repeal the provisions extending the PLRA to juveniles confined in juvenile
          detention and correctional facilities; and

       6. Repeal the filing-fee provisions that apply only to prisoners.

       FURTHER RESOLVED, That the American Bar Association urges Congress to
hold hearings to determine if any other provisions of the PLRA should be repealed or
modified and that legislatures of states having comparable provisions do the same.

        FURTHER RESOLVED, That the American Bar Association urges Congress to
hold hearings to determine what other steps the federal government may take to foster the
just resolution of prisoner grievances in the nation's prisons, jails, and juvenile detention
and correctional facilities.




                                                                                                90
                                         REPORT

        In 1996, Congress enacted the Prison Litigation Reform Act (PLRA). Pub. L. No.
104-34, 110 Stat. 1321 (1996). Although the PLRA placed substantial restrictions on
prisoners’ access to the courts to vindicate constitutional and other legal rights, Congress
never fully vetted the statute and its implications. A House Report issued in 1995 briefly
discussed two House bills that contained some, but not all, of the provisions that were
later included in the PLRA. H.R. REP. NO. 104-21, at 5-6 (1995). But the PLRA itself
simply was inserted and approved as a rider to an omnibus appropriations bill, much to
the consternation of members of Congress who recognized the need for in-depth review
of legislation of such import. See, e.g., 142 CONG. REC. S2297 (1996) (statement of
Senator Simon) (“I am very discouraged that this legislation was considered as one of the
many issues on an appropriations bill. Legislation with such far-reaching implications
certainly deserves to be thoroughly examined by the committee of jurisdiction and not
passed as a rider to an appropriations bill.”).
       For several reasons, the PLRA is of especial concern to all who believe in the
need to adhere to the Constitution and other legal requirements. First, the Act places
formidable, and often insurmountable, obstacles in the paths of incarcerated individuals
seeking redress from the courts for violations of their federally secured rights. And
without access to the courts, the legal rights accorded prisoners are ephemeral and
unenforceable – meaningless words and empty promises.

        Second, the PLRA contravenes the basic premise, one to which the American Bar
Association has long subscribed, that it is as important for prisoners to have ready access
to the courts to enforce their legal rights as it is for everyone in our country. For over
twenty-five years, the ABA steadfastly has maintained that convicted individuals should
be able to bring and defend lawsuits “under procedures applicable to the general public.”
ABA Standards for Criminal Justice, Collateral Sanctions and Discretionary
Disqualification of Convicted Persons, Standard 19-2.6(a)(i) (3rd ed. 2004); ABA
Standards for Criminal Justice, Legal Status of Prisoners, Standard 23-8.5(a) (1981).

        Third, the PLRA singles out for differential treatment individuals who are
particularly vulnerable to violations of their constitutional and other legal rights. In part
because prisoners are isolated from public view, in part because they are so reviled, and
for other reasons, prisoners are frequently the targets and victims of illegal conduct. The
recently issued report of the Commission on Safety and Abuse in America’s Prisons
reaffirmed what is generally known about the nation’s correctional systems: that
problems of sexual and physical abuse of prisoners, the failure to meet their basic
medical and mental-healthcare needs, and sordid conditions of confinement continue
unabated in many prisons and jails across the country. Commission on Safety and Abuse
in America’s Prisons, Confronting Confinement (2006). The Commission report also
underscored that the federal courts historically have played an integral role in unveiling
and remedying the mistreatment of prisoners and violations of their rights that occur
behind the walls and fences of this nation’s prisons and jails, a role that the Commission
found the PLRA has greatly undermined. Id. at 84-87.



                                                                                                91
        Fourth, the PLRA singles out for differential treatment individuals who are
particularly ill-equipped to surmount the barriers to justice the Act erects. Most prisoners
are functionally illiterate, with seven out of every ten performing at the lowest literacy
levels. Karl O. Haigler et al., Literacy Behind Prison Walls xviii, 17 (1994). More than
half of all prisoners, including jail inmates, are mentally ill. Bureau of Justice Statistics,
U.S. Dep’t of Justice, Mental Health Problems of Prison and Jail Inmates, at 1 (2006).
And the persons subject to the PLRA include another category of individuals especially
vulnerable to the prolixities of the PLRA: juveniles, those confined in juvenile as well as
adult detention and correctional facilities.

       The ABA is calling on Congress to revisit the PLRA and repeal or amend those
provisions of the Act that curtail the ability of confined juveniles, jail inmates, and
prisoners to vindicate their constitutional and other legal rights. As a first priority, the
ABA is urging Congress to make the following changes to the PLRA:

       1. Repeal the PLRA’s physical-injury requirement. The PLRA prohibits a
          prisoner from recovering damages for mental or emotional injuries suffered
          while in custody unless the prisoner also was injured physically. See 42
          U.S.C. § 1997e(e). The effect of this provision is to leave a wide range of
          constitutional violations beyond redress, including some forms of torture.
          See, e.g., Bean v. Washington, 1999 WL 759481 (N.D. Ill. 1999) (prisoner’s
          claim for damages dismissed where correctional officials sicced an attack dog
          on the plaintiff, but the dog did not bite him); Walker v. Akers, 1999 WL
          787602 (N.D. Ill. 1999) (claim alleging that correctional officer, while holding
          an electric stun gun, demanded that the prisoner-plaintiff perform a sex act
          dismissed because of the absence of a physical injury). Absent a physical
          injury, the requirement bars prisoners confined in vile conditions or subjected
          to patent violations of their constitutional rights from obtaining compensatory
          relief. See, e.g., Alexander v. Tippah County, Mississippi, 351 F.3d 626, 631
          (5th Cir. 2003) (physical-injury requirement necessitated the dismissal of the
          Eighth Amendment claim of a prisoner who vomited from the smell of the
          raw sewage covering the floor of his isolation cell); Harper v. Showers, 174
          F.3d 716, 719 (5th Cir. 1999) (prisoner confined in filthy, feces-smeared cells
          barred by the physical-injury requirement from recovering damages); Ashann-
          Ra v. Commonwealth of Virginia, 112 F. Supp. 2d 559, 566 (W.D. Va. 2000)
          (although prisoner’s complaint that female officers routinely saw his genitals
          stated a violation of a “clearly established” constitutional right, the physical-
          injury requirement barred his claims for monetary relief). And because most
          courts have construed the physical-injury requirement to apply to
          constitutional violations that typically do not cause physical injuries, such as
          First Amendment, equal protection, and procedural due process violations,
          prisoners cannot obtain compensatory relief for violations of these
          fundamental rights. See Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)
          (listing cases holding that the physical-injury requirement applies to all
          constitutional violations).




                                                                                                 92
2. Amend the requirement for exhaustion of administrative remedies to provide
   that prisoners who have filed a lawsuit within the time period set by the
   statute of limitations but have not exhausted their administrative remedies can
   pursue their claim through an administrative-remedy process while the
   lawsuit is stayed. The PLRA requires prisoners to exhaust available
   administrative remedies before filing a lawsuit that challenges the legality of
   the conditions of their confinement under 42 U.S.C. § 1983 or any other
   “[f]ederal law.” In Woodford v. Ngo, 126 S.Ct. 2378 (2006), the Supreme
   Court held that this exhaustion requirement implicitly includes a procedural-
   default sanction. In other words, if a prisoner does not file a grievance within
   the timelines set by prison officials, the prisoner has failed to exhaust
   administrative remedies and is barred from bringing suit. In an amicus brief
   filed with the Supreme Court, the American Bar Association strongly
   disagreed with this interpretation of the PLRA’s exhaustion requirement.

   One of the problems with the exhaustion requirement, as it is currently
   constructed, is that it effectively closes the courthouse door to many prisoners.
   See, e.g., Gauntt v. Miracle, 2002 WL 1465763 (N.D. Ohio) (complaint
   alleging injuries from a correctional officer’s excessive use of force dismissed
   because of the prisoner’s failure to meet a 5-day deadline in filing a
   grievance). The deadlines for filing a prison grievance typically are very short,
   usually no more than fifteen days and in some states as little as two to five
   days. See id. at 2402 (Stevens, J., dissenting). In effect, a procedural-default
   rule engrafted onto the exhaustion requirement imposes a statute of limitations
   on many prisoners that ranges from a few days to a few weeks. Yet the
   Supreme Court has recognized that many victims of civil-rights violations will
   not recognize, even within 120 days, that their rights have been violated. See
   Felder v. Casey, 487 U.S. 131 (1988) (holding that a state statute requiring
   that state and local officials be notified of a claim within 120 days after the
   incident on which it is based is unenforceable in a § 1983 suit).

   Prisoners, isolated from the outside world and often illiterate, are even less
   likely to recognize, in an even shorter timeframe, that their rights have been
   violated and that they have the right to legal redress. And since prisoners live
   in an environment fraught with suspicion and fears of retaliation, they are
   even less likely to muster the courage, particularly under such tight time
   constraints, to seek the redress to which they are or may be entitled. Finally,
   some constitutional violations are so egregious (e.g., rape by a correctional
   officer) or stigmatizing (e.g., failure to protect from a homosexual assault) that
   a prisoner-victim will need more time than that allotted for the filing of a
   grievance to overcome the trauma of the event before seeking administrative
   or legal redress.




                                                                                        93
Consequently, the PLRA’s exhaustion-of-remedies requirement should be amended to
                      allow prisoners the same amount of time as other individuals
                      to recognize and pursue their legal rights. This objective can
                      be realized by allowing prisoners who have filed a lawsuit
                      within the time period set by the statute of limitations but
                      have not exhausted their administrative remedies to pursue
                      their claim through an administrative-remedy process while
                      the lawsuit is stayed. With this refinement to the PLRA,
                      prison officials will retain the opportunity to interview
                      material witnesses, marshall relevant evidence, and resolve
                      grievances, either averting or preparing for litigation.

      3. Eliminate the restrictions on the equitable authority of courts in conditions-of-
         confinement cases. Lawsuits seeking injunctive relief have been brought to
         remedy what are sometimes egregious violations of prisoners’ constitutional
         rights. See, e.g., Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990) (cellblocks
         infested with vermin, bed bugs, mice, fleas, and lice; bird feces on floors and
         railings and “so dense” that cellblock windows are “virtually covered”;
         auditorium and gymnasium, where several hundred inmates are supervised by
         one correctional officer, are “dens of violence”; no master system for
         unlocking cells during a fire, as a result of which it would take at least fifteen
         minutes to evacuate all inmates from a cellblock, although the block would be
         filled with smoke within two to three minutes); Gates v. Collier, 501 F.2d
         1291 (5th Cir. 1974) (water supply contaminated with sewage; exposed
         electrical wiring; lack of sufficient fire-fighting equipment; broken windows;
         cells known as the “dark holes,” which lack lights, a sink, a toilet, or furniture
         and which have a hole in the floor for bodily wastes; inmates placed in the
         dark hole without clothes or bedding; brutal methods of discipline employed,
         including the forced administration of milk of magnesia to inmates and
         turning fans on wet and naked inmates); Madrid v. Gomez, 889 F.Supp. 1146
         (N.D. Cal. 1995) (endemic failure to meet prisoners’ medical needs and
         prevalent use of excessive force against prisoners, such as when correctional
         officers held a mentally ill prisoner in a bathtub of scalding water, burning
         him so badly that large clumps of skin from his buttocks hung down around
         his legs).

          Despite the importance of enforcing prisoners’ constitutional rights and the
          demonstrated penchant of some government officials to violate or tolerate
          violations of those rights, the PLRA significantly restricts, in a number of
          ways, the traditional equitable power of courts to redress unconstitutional
          conditions of confinement. To give but three examples of ways in which the
          PLRA has contracted courts’ remedial authority, the Act limits the amount of
          time that a preliminary injunction can remain in effect in a conditions-of-
          confinement case to just ninety days. 18 U.S.C. § 3626(a)(2).




                                                                                              94
Second, the Act provides that upon motion of a defendant or certain state or
local officials, an injunction will be terminated two years after its entry unless
the court finds that the injunction is needed to remedy a “current and ongoing”
violation of a federal right, extends “no further than necessary to correct the
violation,” is “narrowly drawn,” and is the “least intrusive means” of
correcting the violation. Id. § 3626(b)(1)(A)(i); id. § 3626(b)(3). In other
words, to avoid termination of the injunction, the plaintiffs must once again
prove their entitlement to relief. (By contrast, when defendants seek
termination of an injunction in a case in which non-prisoners prevailed, the
defendants have the burden of proving that they are operating an institution in
conformance with the Constitution and that it is unlikely that they will resume
their unconstitutional conduct. Board of Education v. Dowell, 498 U.S. 237,
247 (1991)). And even if the prisoner-plaintiffs are able to make the showing
required by the PLRA, the Act allows the defendants to file a termination
motion every year thereafter, placing perpetual and onerous burdens on the
plaintiffs and the court. 18 U.S.C. § 3626(b)(1)(A)(ii).

Finally, the mere filing of a motion to terminate an injunction, without more,
automatically stays the injunction thirty to ninety days after the motion is
filed. Id. § 3626(e)(2). In other words, enforcement of the injunction halts
pending the adjudication of the motion even if the defendants have failed to
comply with the injunction and unconstitutional conditions persist in the
prison.

As the American Bar Association has long contended, legislation should not
curtail the remedies available to federal courts to enforce constitutional rights.
Report of the Board of Governors to the House of Delegates, Annual Report
of the American Bar Association 701 (1982). In addition, the scope of the
courts’ equitable powers in cases involving prisoners should be no different
than the scope of those powers in cases brought by all other litigants. The
remedial authority that the PLRA has wrested from courts therefore should be
returned to them. And to the extent that the enactment of these restrictions on
the courts’ equitable powers stemmed from legitimate concerns about the
length of time that some correctional facilities have operated under a court
order, Congress should initiate a full-ranging factual inquiry to determine the
reasons for the prolonged periods of time that some court orders have been in
effect. See, e.g., Glover v. Johnson, 934 F.2d 703, 715 (6th Cir. 1991) (“The
history of this case shows a consistent and persistent pattern of obfuscation,
hyper-technical objections, delay, and litigation by exhaustion on the part of
the defendants to avoid compliance with the letter and the spirit of the district
court’s orders. The plaintiff class has struggled for eleven years to achieve the
simple objectives of equal protection under the law generally, and equality of
opportunity specifically.”). Only then can an informed decision be made as to
what steps Congress can and should take to ensure that unconstitutional
conditions of confinement are abated promptly.




                                                                                     95
4. Amend the PLRA to allow prisoners who prevail on civil-rights claims to
   recover the same attorney’s fees recoverable in civil-rights cases brought by
   the general public. Title 42 U.S.C. § 1988(b) provides for the award of
   “reasonable” attorney’s fees to parties who prevail in suits brought under §
   1983 and several other federal statutes to enforce civil rights. Believing that
   the enforcement of civil rights is of the “highest priority,” S. REP. NO. 94-
   1011, at 3 (1976), Congress enacted § 1988 because, without a fee-award
   provision enabling lawyers to recover their costs in representing civil-rights
   plaintiffs, victims of civil-rights violations often would be unable to procure
   the assistance of counsel. The nation’s civil-rights laws then would go largely
   un-enforced. See id. at 5 (“In several hearings held over a period of years, the
   Committee has found that fee awards are essential if the Federal statutes to
   which S. 2278 applies are to be fully enforced.”); 122 CONG. REC. 35,182
   (statement of Rep. Seiberling) (“[A] failure to authorize the awarding of
   attorneys’ fees in civil rights cases will, as a practical matter, repeal the civil
   rights laws for most Americans.”).

   The requirement that the attorney’s fees awarded under § 1988 be
   “reasonable” already places limits on the fees that can be awarded prevailing
   plaintiffs in civil-rights actions. For example, the degree to which a plaintiff
   has or has not succeeded in a case is factored into the assessment of what are
   “reasonable” attorney’s fees and can affect the size of the fee award. Hensley
   v. Eckerhart, 461 U.S. 424, 434-36 (1983).

   But the PLRA places a number of additional restrictions on the attorney’s fees
   that can be recovered under § 1988 by prisoner-plaintiffs who prevail in civil-
   rights suits, restrictions that do not apply to any other prevailing litigants. For
   example, instead of the defendant paying the full fee award, a certain portion
   (up to twenty-five percent) of the damages a prisoner recovers must be applied
   to pay the attorney’s fees awarded against the defendant. 42 U.S.C. §
   1997e(d)(2). In addition, the PLRA imposes a cap on the hourly rate at which
   attorneys who represent prevailing prisoners are reimbursed, creating a
   disincentive for attorneys to represent prisoners. Id. § 1997e(d)(3). And no
   matter how much time a lawyer invests in a prisoner-client’s case, the fee
   award is capped at 150% of the judgment. Id. § 1997e(d)(2). See Riley v.
   Kurtz, 361 F.3d 906, 917-18 (6th Cir. 2004) (finding that the 150% cap
   forbade the award of additional attorney’s fees for the over $25,000 in fees
   and expenses incurred by the prisoner’s counsel in successfully defending on
   appeal the judgment entered on the prisoner’s behalf). For example, if a
   prisoner recovers a hundred dollars in damages, the fee award will be just
   $150, hardly the recompense needed to enable prisoners seeking damages for
   violations of their constitutional rights to procure the assistance of counsel.
   See, e.g., Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (finding that a
   prisoner awarded one dollar in damages for the violation of his Fourth
   Amendment rights was entitled to $1.50 in attorney’s fees).




                                                                                         96
These restrictions on attorney’s fees make it even more difficult for prisoners to secure
                          counsel to represent them in cases brought to remedy
                          violations of their civil rights. Consequently, the Commission
                          on Safety and Abuse in America’s Prisons recommended that
                          the PLRA’s restrictions on attorney’s fees be removed.
                          Commission on Safety and Abuse in America’s Prisons,
                          Confronting Confinement 86 (2006). The American Bar
                          Association joins in that recommendation.

       5. Repeal the PLRA provisions extending its requirements to juveniles confined
          in juvenile detention and correctional facilities. The PLRA’s proponents
          professed that its provisions were designed to curb the filing of frivolous
          lawsuits by prisoners. Juveniles incarcerated in juvenile detention and
          correctional facilities had not filed the frivolous lawsuits that those lobbying
          for the PLRA’s enactment referred to in largely unsubstantiated anecdotes.
          See Hon. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in
          Haystacks, 62 Brook. L. Rev. 519, 520-22 (1996) describing the accounts of
          the prisoners’ lawsuits cited in an effort to secure the PLRA’s passage as “at
          best highly misleading and, sometimes, simply false”). In fact, because of
          their age and other encumbrances, incarcerated juveniles file very few
          lawsuits at all, much less frivolous lawsuits, even when they have suffered
          gross violations of their constitutional rights. Nonetheless, the PLRA’s
          provisions currently apply to children confined in detention and correctional
          facilities for juveniles, further diminishing the protection the law affords this
          very vulnerable stratum of confined individuals. See, e.g., Minix v. Pazera,
          2005 WL 1799538 (N.D. Ind. 2005) (federal claims dismissed because
          plaintiff, who was repeatedly raped while confined in juvenile facilities and
          whose mother contacted numerous government officials in her “heroic
          efforts” to protect her son, failed to file a formal grievance protesting the
          defendants’ failure to protect him).

       6. Repeal the PLRA’s filing-fee provisions. The PLRA’s filing-fee provisions
          impose a heavy financial burden on poor prisoners who want and need to file
          a federal lawsuit in order to obtain relief from violations of their civil rights.
          Under these provisions, indigent prisoners who bring a federal lawsuit and
          cannot pay the full filing fee upfront must pay a partial filing fee at the outset
          and must pay the entire fee over time, a requirement to which no other
          indigent litigant is subject. 28 U.S.C. § 1915(b)(1). These filing-fee provisions
          not only raise concerns because of their disparate treatment of prisoners but
          also because the size of the filing fee -- now $350 in federal district courts --
          dissuades impoverished prisoners from bringing potentially meritorious
          claims to court.




                                                                                               97
In addition to adopting the recommended amendments to the PLRA set forth above,
Congress should fully examine the repercussions of other PLRA provisions on the ability
of inmates with meritorious legal claims to obtain redress for the violation of their federal
rights. Because access to the courts is crucial to the enforcement of constitutional and
other legal rights, the burden is upon those who favor these other PLRA restrictions to
demonstrate that they do not frustrate the enforcement of the Constitution and civil-rights
laws or impair the ability of prisoners to obtain full redress for violations of their legal
rights.

        Following the enactment of the PLRA, many states adopted state statutes that
mirrored its provisions and were designed to restrict prisoners’ access to state courts. See
Margo Schlanger, Inmate Litigation, 116 Harv.L.Rev. 1555, 1635 & nn. 271-72 (2003).
As a first and immediate priority, state legislatures should repeal or amend the statutory
provisions that are the state counterparts to the PLRA provisions highlighted above. In
addition, the state legislatures should hold hearings to determine if other provisions in the
states’ statutes should be repealed or amended because they impede the enforcement of
inmates’ legal rights.

       Finally, Congress should hold hearings to determine what steps the federal
government can take to foster the just resolution of prisoners’ complaints by correctional
grievance systems. Those steps might include linking federal funding to specified
improvements in grievance processes, technical assistance from the federal government
to improve those processes, and further changes in the PLRA to limit application of the
exhaustion requirement to grievance systems that meet certain delineated requirements.
State and local governments also should identify and take steps to improve the
functioning of correctional grievance systems. If grievance systems are structured in a
way that maximizes their potential to solve problems, address prisoners’ legitimate
concerns, and remedy violations of prisoners’ legal rights, prisoners will be less likely,
and have less of a need, to turn to the federal courts for redress. 9

Respectfully Submitted,



Robert M.A. Johnson
Chair, Criminal Justice Section
February 2007




9
  For a discussion of some of the structural features of a grievance system that may avert the need for
litigation, see LIMITING THE BURDENS OF PRO SE INMATE LITIGATION: A TECHNICAL-
ASSISTANCE MANUAL FOR COURTS, CORRECTIONAL OFFICIALS, AND ATTORNEYS
GENERAL (American Bar Association 1997).


                                                                                                          98
                          AMERICAN BAR ASSOCIATION

                  COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                               CRIMINAL JUSTICE SECTION
                       NATIONAL DISTRICT ATTORNEYS ASSOCIATION
                     NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                          REPORT TO THE HOUSE OF DELEGATES
                  [ON ALTERNATIVES TO INCARCERATION AND CONVICTION]

                                      RECOMMENDATION

RESOLVED, That the American Bar Association urges federal, state, territorial and local
governments to develop, implement, and fund programs that prosecutors and other criminal
justice professionals can utilize to enable an offender to be placed under community supervision
in appropriate cases. While the qualifications for entry into the programs will vary among
jurisdictions, generally the programs should be available when the offender:

       i)      poses no substantial threat to the community;
       ii)     is not charged with a predatory crime, a crime involving substantial violence, a
               crime involving large scale drug trafficking, or a crime of equivalent gravity;
       iii)    has no prior criminal history that makes community supervision an inappropriate
               sanction; and
       iv)     is not currently on parole or probation, unless the supervising authority
               specifically consents.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to develop, and to support and fund prosecutors and others seeking to
develop, deferred adjudication/deferred sentencing/diversion options that avoid a permanent
conviction record for offenders who are deemed appropriate for community supervision pursuant
to the criteria set forth above.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to develop, support and fund programs that offer community-based treatment
alternatives to incarceration, including inpatient treatment, to those offenders whose crimes are
associated with substance abuse and/or mental illness; and for whom diversion has been deemed
appropriate pursuant to the criteria set forth above.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to develop, support and fund prosecutors and other criminal justice
professionals seeking to develop programs to train law enforcement officers to recognize the
signs and symptoms of mental illness in order to facilitate the appropriate resolution by the
police in those situations.
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to encourage prosecutors and defenders, in close cooperation with the courts,
to create working groups that include other stakeholders in the justice system to develop, review,
monitor, and improve deferred adjudication/ deferred sentencing/diversion options.
                                                                                                99
                                                      REPORT

I. Background

        In the late 1970s, pessimism about the possibility of rehabilitating criminals ushered in an
era of harsh prison sentences.1 Politicians on both the right and left embraced the work of social
scientists like Robert Martinson, who concluded that correctional programming had little
appreciable effect on recidivism rates.2 The gloomy conclusion that “nothing works” to steer
people away from crime both supported and advanced the “tough on crime” political agenda that
dominated the 1980s and 90s, with its reliance on long mandatory prison sentences.

        The War on Drugs that began in the mid-1980s, and the deinstitutionalization of the
mentally ill that was already well underway, ensured that a large percentage of the people who
were sentenced to prison were substance abusers, mentally ill, or both. The burden of these
incarceration policies has fallen primarily on the minority community: of the 2.2 million people
now in our prisons and jails, almost half are African-American, and another 20% are Hispanic.
One of the most painful costs of incarceration is that one and a half million children in the United
States under the age of eighteen have at least one parent in state or federal prison.3

         In the past ten years there have been increasing doubts about the efficacy of increased
incarceration as a general crime control measure, at least when unaccompanied by serious efforts
to treat substance abuse and mental illness in the prison population.4 During this period, much

1
    See, e.g., Marc Mauer, RACE TO INCARCERATE at 40-54 (revised and updated, 2006).
2
  See, e.g., Douglas Lipton, Robert Martinson, and Judith Wilks, The Effectiveness of Correctional Treatment: A
Survey of Treatment Evaluation Studies (Praeger Press, 1975). A series of articles in the popular press by Professor
Martinson popularized the idea that “nothing works” to reform criminals, and that society’s only hope of reducing
crime lies in the deterrent value of harsh prison sentences (or death). See, e.g., Robert Martinson, "The Paradox of
Prison Reform," The New Republic, 166, April 1, 6, 15 and 29, 1972; Martinson, "What Works? - Questions and
Answers About Prison Reform," The Public Interest, Spring 1974, at 22-54. In 1984, the United States Supreme
Court noted that “Rehabilitation as a sound penological theory came to be questioned and, in any event, was
regarded by some as an unattainable goal for most cases the trend.” See Mistretta v. United States, 488 U.S. 361,
363 (1989), citing Norval Morris, The Future of Imprisonment 24-43 (1974), and Frederick Allen, The Decline of
the Rehabilitative Ideal (1981).”) In upholding the federal sentencing guidelines, which gave little weight to such
factors as amenability to treatment, personal and family history, previous efforts to rehabilitate oneself, or possible
alternatives to prison, the Supreme Court cited a Senate Report that “recognized that the efforts of the criminal
justice system to achieve rehabilitation of offenders had failed." 488 U.S. at 366.
3
“In 1999 an estimated 721,500 State and Federal prisoners were parents to 1,498,800 children under age 18.” U.S.
Department of Justice, Bureau of Justice Statistics, August 2000, NCJ 182335.
4
  The Justice Kennedy Commission analyzed data from a number of state jurisdictions and concluded that “It is not
even clear that the increased use of incarceration has enhanced public safety, although lawmakers for twenty years
have acted in reliance on the claimed crime-preventive effect of harsh and certain punishments. . . . The numbers do
suggest . . . that there may well be an over-reliance on incarceration in some criminal justice systems, and there is
reason to doubt whether constantly increasing the use of incarceration is cost effective.” Report of the ABA Justice
Kennedy Commission at 20, 21.
http://meetings.abanet.org/webupload/commupload/CR209800/newsletterpubs/JusticeKennedyCommissionReports_
Final_081104.pdf. See also Incarceration and Crime: A Complex Relationship by Ryan S. King, Marc Mauer, and
Malcolm C. Young, available at http://www.sentencingproject.org/pdfs/incarceration-crime.pdf. A report of the
Washington State Institute for Public Policy noted that, at least as to incarceration in that state, “Diminishing returns
means that locking up the fifth person per 1,000 did not, on average, reduce as many crimes as did incarcerating the
                                                                                                                     100
data has been gathered concerning the economic and social costs of “mass imprisonment.”5
Two years ago, the Justice Kennedy Commission reported that “many prosecutors, judges,
defense counsel and legislators who have differing attitudes toward crime and punishment share
a feeling that more incarceration and longer sentences are not always in the public interest.”6

        With more than two-thirds of those being released from prison rearrested within three
years of release,7 and 42% of parolees returning to prison or jail within 24 months of their
release,8 policy makers and law enforcement practitioners alike are re-thinking the practice of
incarceration divorced from efforts to rehabilitate. The realization that 650,000 prisoners are
returning each year to the communities they left, unimproved by their experience in the
penitentiary, has inspired even some elected officials to take a new look at the old issue of
rehabilitation.9 At the same time, social scientists and law enforcement practitioners are
discovering that some things do “work” to turn an individual away from crime, under the right
conditions.10

second, third, or fourth person per 1,000.” Steven Aos, The Criminal Justice System in Washington State:
Incarceration Rates, Taxpayer Costs, Crime Rates and Prison Economics,
http://www.wsipp.wa.gov/rptfiles/SentReport2002.pdf (January 2003).
5
 See, e.g., INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT
(Marc Mauer & Meda Chesney-Lind eds., 2002); Dina R. Rose, Todd Clear and Judith A. Ryder, Drugs,
Incarcerations and Neighborhood Life: The Impact of Reintegrating Offenders in the Community (Washington,
DC: National Institute of Justice 2000); John Hagan & Ronit Dinovitzer, Collateral Consequences of
Imprisonment for Children, Communities, and Prisoners, in PRISONS (Michael Tonry & Joan Petersilia eds.,
1999).
6
 Justice Kennedy Commission Report, supra note 4 at 22. This apparent change in attitude by policy-makers
notwithstanding, the most recent Justice Department data shows prison and jail populations continuing to increase,
by 2.7% overall between December 2004 and December 2005. See Paige M. Harrison and Alan J. Beck, Bureau of
Justice Statistics, Prisoners in 2005 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf
During 2005, the number of inmates in State prisons increased 1.3%; in Federal prisons 5.1%; and in local jails,
4.7%. Overall, the state incarceration rate rose about 14% between yearend 1995 and yearend 2005, from 379 to 491
prisoners per 100,000 U.S. residents. At the same time the federal incarceration rate rose 72%, from 32 to 55
prisoners per 100,000 U.S. residents. The rate of incarceration in prison and jail in 2005 was 738 inmates per
100,000 U.S. residents, up from 725 the year before. At yearend 2005, one in every 136 U.S. residents were in
prison or jail. An estimated 12% of black males, 3.7% of Hispanic males, and 1.7% of white males in their late
twenties were in prison or jail. A total of seven million people in the Uniteed States – one in every 32 adults --
were currently serving time in prison or jail, or on probation or parole. See Lauren E. Glaze and Thomas P.
Bonczar, Bureau of Justice Statistics, Probation and Parole in the United States, 2005,
http://www.ojp.usdoj.gov/bjs/pub/pdf/ppus05.pdf.
7
    Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994, June 2002, NCJ 193427

8
 Reentry Trends in the U.S.: Success rates for State Parolees, Bureau of Justice Statistics, available at
http://www.ojp.usdoj.gov/bjs/reentry/success.htm. See also Amy Solomon, Does Parole Supervision Work? at
27(Urban Institute 2005), citing Glaze, L.E. and S. Palla, Probation and Parole in the United States, 2004., Bureau of
Justice Statistics Bulletin 2005 (46% of parolees do not complete term successfully)

9
 See Jeremy Travis, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY (THE URBAN
INSTITUTE, 2005); Joan Petersilia, WHEN PRISONERS COME HOME: PAROLE AND PRISONER RENTRY (Oxford
University Press, 2004).
10
  See Joan Petersilia, J. What Works in Prisoner Reentry? Reviewing and Questioning the Evidence. Federal
Probation. Volume 68, Number 2 (2004), Available at
                                                                                                                  101
         The Commission’s name reflects the growing public appreciation of the need to develop
cost-effective sentencing strategies that take into account not just the short term goal of
protecting the public by imprisoning people who break the law and threaten the safety of the
community, but also the longer term goal of helping offenders avoid future criminal behavior,
thereby reducing the number of future victims of crime. Social service and public health
agencies will play a role in developing and implementing these sentencing strategies, as will law
enforcement agencies. But lawyers have the primary responsibility for crafting and
administering an effective sanctioning policy, whether it be at the legislative level or in a county
prosecutor’s office. The overall goal is to produce sanctions that are more effective for the
families and children of criminal offenders, more effective for their communities and for their
victims, more effective for the criminal law practitioners who are committed to making the
justice system work fairly and efficiently, and more effective in changing the lives of the people
we label “criminals.”

II. Policy Recommendations

       In exploring what constitutes an effective sanction, we began with the principles
enunciated by the Justice Kennedy Commission that:

           (1) Lengthy periods of incarceration should be reserved for offenders who pose
               the greatest danger to the community and who commit the most serious
               offenses.

           (2) Alternatives to incarceration should be provided when offenders pose minimal
               risk to the community and appear likely to benefit from rehabilitation efforts.11

In order to develop a broader perspective on the different “alternatives to incarceration” that
might be recommended, the Commission decided to find out what was actually being tried in the
field. At hearings in Washington, D.C., and Chicago in the Spring of 2006, we heard from
officials from a number of different state jurisdictions12 that are experimenting with programs
that offer less serious offenders a chance to avoid prison and a conviction record, and with
innovative community-based interventions for drug-related crimes. We learned that prosecutors
have been particularly effective in many jurisdictions in advocating for diversion and deferred
adjudication programs, which enable offenders to avoid incarceration and to be placed under
community supervision. Often these programs are focused on individuals with substance abuse
problems or mental illness, or both, who need treatment. (A number of these programs are
described in the third section of this report.)



http://www.uscourts.gov/fedprob/September_2004/whatworks.html; Steve Aos, Marna Miller, and Elizabeth Drake,
Evidence-based Adult Corrections Programs: What Works and What Does Not (2006).
11
     Justice Kennedy Commission Report, supra note 4 at 9.
12
  Witnesses from Arkansas, Connecticut, Maryland and New York (Brooklyn) testified in Washington, D.C. on
March 3, 2006. Witnesses from Illinois (Chicago), Kansas, Michigan, and Oregon testified in Chicago on March 31,
2006. Notes from both hearings and a list of witnesses are posted at http://www.abanet.org/cecs. Every state
delegation included at least one prosecutor (though Arkansas DA H.G. Foster was unable at the last minute to attend
the hearing in Washington, and so did not testify in person).
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        But we also learned that neither researchers nor practitioners have reached any firm
conclusions about which sanctions or programs reduce recidivism in the most cost-effective
manner. The Urban Institute’s Nancy LaVigne testified before the Commission in Chicago
about the types of programs that have been shown to result in reduced re-arrest rates, but she
cautioned against extrapolating from these results because researchers have found that the
effectiveness of particular programs can depend upon unquantifiable variables relating to the
administration of the program. In other words, from Ms. LaVigne we learned that some
programs have worked in some places, but that the experts are still undecided as to what kinds of
programs are most likely to work in all places.13

        Because of continuing uncertainty about what works to reduce recidivism and what does
not, the Commission’s recommendations on alternative sentencing strategies deal as much with
process as with the actual content of programs. Our first recommendation is couched in general
terms, but is actually aimed at encouraging prosecutors and other criminal justice professionals
to take a leading role in developing programs to enable offenders to avoid incarceration and to be
placed under community supervision.14 Our recommendation recognizes that prosecutor-
developed programs, which will find widespread community support, are likely to exclude from
consideration people charged with certain very serious offenses (“a predatory crime, a crime
involving substantial violence, a crime involving large scale drug trafficking, or a crime of
equivalent gravity”) as well as those who pose a risk to public safety or whose record makes
them otherwise inappropriate for community placement. Offenders who are not charged with
one of the excluded crimes, and who are not excluded under one of the other two rubrics, should
be eligible for community placement, and for community-based treatment programs, diversion
and deferred adjudication.


13
   For example, while boot camps and other “shock” incarceration programs have generally not been successful in
reducing recidivism, the boot camp administered by the Cook County Sheriff ‘s Office (which several
commissioners visited) has a solid record of accomplishment, possibly because of the continuity of services after
“graduation” and sustained aftercare in the community. According to Ms. LaVigne, long-term residential drug
treatment programs that are based on a therapeutic model (such as the Brooklyn DTAP program and the Arkansas
Community Correction Centers described infra) have been shown to be quite successful in dissuading individuals
from criminal activity. Most diversion programs, including drug courts, have not been subjected to rigorous social
science analysis because of the difficulty of collecting data on participants. Faith-based programs have been
particularly difficult to study because of the absence of data.
14
  We use the term “incarceration” to refer to a secure jail or penitentiary-like environment, in contrast to
“community supervision,” which refers to a range of community-based custodial options (including half-way
houses, community corrections centers, drug treatment facilities, and even home detention), which permit sentenced
defendants (or defendants who have been deferred to probationary status) to remain connected to their own
communities and families, even if they are not entirely free to come and go at will. The term “imprisonment” is
often used more broadly to refer to both incarcerative and community-based custodial placements. See, e.g., Todd
Bussert, Peter Goldberger, and Mary Price, “New Time Limits on Federal Halfway Houses: Why and how lawyers
challenge the Bureau of Prisons shift in correctional policy and the courts’ response,” Criminal Justice Magazine
(Spring 2006)(describing litigation over efforts by the federal correction al authorities to limit their own ability to
designate sentenced offenders to community corrections centers as “places of imprisonment” under 18 U.S.C.
33621(b)). The ABA has found “troubling” BOP’s efforts to impose regulatory limits on its own ability to designate
sentenced offenders to community corrections centers, in light of contrary judicial holdings, and in light of the
government’s stated commitment to facilitate offender reentry. See Letter to the Bureau of Prisons Rules United,
dated October 15, 2004, from James Felman and Todd A. Bussert, co-chairs of the ABA Criminal Justice Section’s
Corrections & Sentencing Committee.

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        One of the factors that prosecutors, judges and others involved in making community
supervision decisions may take into account is the impact of incarceration on families. The
increase in the female prison population in particular poses an increasing risk to family stability,
since women are typically the caretakers of children.15 In some cases, incarceration of a parent
will have a deleterious effect on children and family relationships, and thus on the community as
a whole. Although some children live with a relative during their parent’s incarceration, many
enter the foster care system because no family member is available to care for them In many
cases it would be better for the children if they could stay in close touch with their caretaker
parent in their own community. And, regaining custody of their children and re-establishing
family relationships is a major task for women offenders coming home from prison. On the
other hand, there may be cases where children would benefit from being separated from an
abusive or addicted caretaker parent.

        The fact that a community sanction program developed in a particular jurisdiction might
be generally designed to exclude those charged with certain kinds of offenses does not mean that
a prosecutor could not occasionally choose to seek, or a court choose to impose, a community-
based sanction notwithstanding a particular individual’s ineligibility for the general program.
ABA sentencing policy provides that a prison sentence should be mandated by law for a
particular offense only in the narrow circumstances where “the legislature can contemplate no
mitigating circumstance that would justify a less restrictive sanction.” ABA Standards for
Criminal Justice on Sentencing, Standard 18-3.11(c).

        Similarly, the provision that generally an offender should be ineligible for community
supervision when he/she is not currently on parole or probation, unless the supervising authority
specifically consents to community supervision recognizes the practical reality that community
supervision is not likely to be available if a parole board or a judge with authority over probation
has decided to return an offender to prison or jail. The provision encourages judges to consult
with probation and parole officials to determine what sanction for a new offense will best serve
the offender while protecting the safety of the community, and recognizes that judges may
impose a community supervision sentence when doing so does not result in any conflict between
an existing probation or parole status.

      The testimony also suggested to the Commission that community-based sanctioning
programs will be most effective if they hold out the prospect of the offender’s ending up with no

15
   Ann Jacobs, Director of the Women’s Prison Association, comments in her introduction to a new study of women
in prison that “The cycling of women through the criminal justice system has a destabilizing effect not only on the
         s
women' immediate families, but on the social networks of their communities. They are, more often than not,
primary caretakers of young children and other family members.” Introduction to Natasha Frost, Judith Greene and
Kevin Pranis, The Punitiveness Report - Hard Hit: The Growth in Imprisonment of Women, 1977-2004 (2006),
available at http://www.wpaonline.org/institute/hardhit/foreword.htm. This recent study tracks changes in the
incarceration rate of women between 1977 and 2004, a period in which the number of women serving sentences of
more than a year grew by 757% -- nearly twice the 388 percent increase in the male prison population. Most of the
increase can be accounted for by the drug war: the percentage of women serving time for drug offenses grew from
11% in 1979 to 32% in 2004. In most cases. Women arrested for involvement in the drug trade tend to play
peripheral or minimal roles, selling small amounts to support a habit, or simply living with intimates who engage in
drug sales. Lenora Lapidus, Namita Luthra & Anjuli Verma; Deborah Small; Patricia Allard & Kirsten Levingston.
“Caught in the Net: the Impact of Drug Policies on Women and Families.” Available at
http://www.fairlaws4families.org/ A second volume of the study will look more deeply at factors that increased the
risk of imprisonment for women arrested for felony offenses and increased the amount of time spent behind bars.

                                                                                                                 104
criminal record. The collateral consequences triggered by a conviction record make it very
difficult for offenders to get a job or housing and, generally, to put their lives back on track after
their court-imposed sentence has been served. Sometimes the collateral consequences of
conviction are far more severe than the direct ones, and it is therefore of considerable concern to
defenders, in assessing whether to recommend a guilty plea to their clients, whether their client
will end up with a felony conviction on their record.

        Therefore, when a deferred adjudication/deferred sentencing/diversion option requires a
defendant to enter a guilty plea as a condition of participation, such programs should also offer
the incentive to defendants and their counsel of having the charges dismissed and the record
expunged if the terms of probation are successfully completed, so that collateral consequences
will not be triggered. Defenders are often placed in a difficult position in counseling their clients
about whether to participate in a treatment program. Frequently the terms of probation are quite
strenuous, and may include extended periods of time in in-patient drug treatment, and the
possibility of failure or drop-out is very real.16 On the other hand, the possibility that their client
could end up with no record of conviction – and in some jurisdictions no publicly accessible
record at all – may make defenders see their way clear to encouraging their clients to enter a plea
and get the treatment they need.17

        The Commission urges jurisdictions not to exclude people from consideration for
community-based treatment programs solely because they may have more than one conviction,
or some history of minor violence. In too many cases, treatment programs are limited, by statute
or by policy, to the so-called “non-violent first offender.” Anyone who has dealt with addiction
and mental illness understands that relapse is a predictable part of getting well, and that slips are
to be expected and should be tolerated to some degree. Restricting recovery programs to people
who have had no prior run-ins with the law, or who have never gotten into a bar fight or street
altercation, is to rule out a large population that could benefit from a second chance. The
resolution adopts no exclusionary criteria, but provides instead that a person should be ineligible
for community supervision only when his/her offense conduct and/or criminal history makes
such a sanction inappropriate. This permits flexibility and individualized considerations of
offenders and the charges brought against them, not ruling out of consideration categorically
anyone because of the nature of the offense or the extent of the person’s criminal record.

         The Commission also heard testimony about the beneficial effects of having law
enforcement personnel trained to recognize the signs and symptoms of mental illness in order to
facilitate appropriate handling of their cases and, in some instances, to avoid unnecessary arrests.
Police are generally the first on the scene when a person with mental illness creates a disturbance

16
   Lisa Schreibersdorf, Executive Director of the Brooklyn Defenders Office, reminded the Commission that
constitutional safeguards must always be observed when an alternative therapeutic program is being developed.
Confidentiality must be protected in these programs when clients are provided counseling and other services, and
attorney consent should be received before a client is interviewed. Also, the constitutional right against cruel and
unusual punishment must be monitored by courts, because the practices of some programs could amount to violation
of defendants’ constitutional rights.
17
  Some defenders are reluctant to counsel their clients to plead guilty if there is a reasonable chance they can win an
acquittal, even if it is evident that the clients are in need of drug treatment or other intervention to help them from
coming back into the justice system. A program that offers the possibility of complete expungement at the end may
present to a conscientious defender an offer that tips the balance in favor of treatment.

                                                                                                                   105
or commits a crime; they have the discretion to determine whether to arrest, refer the person to
community based treatment services, take other action as might be appropriate. We recommend
that all jurisdictions provide this training.18

        The Commission recommends that prosecutors and defenders, in close cooperation with
the courts, create working groups that include other stakeholders in the justice system to review,
monitor, and improve systemic alternatives to incarceration and conviction. The Commission
heard from many witnesses that systemic change is necessary, both in the law and in attitudes,
and that change comes fastest when all key stakeholders within the criminal justice system work
together. Edwin Burnett, Public Defender for Cook County (IL), emphasized the importance of
all stakeholders’ being at the table in developing the policies in order for them to succeed.19 This
theme was also echoed by District Attorneys Michael Schrunk, Multnomah County (OR), and
Charles “Joe” Hynes, Kings County (Brooklyn, NY), and others who stated that prosecutors,
defenders, and the court system must work collaboratively to reduce recidivism. A good
example of such a partnership is the Brooklyn District Attorney’s ComALERT (Community and
Law Enforcement Resources Together) program, which provides substance abuse treatment and
transitional employment and counseling to approximately 1,000 formerly incarcerated inmates
each year. When such collaborative working groups meet on a regular basis, they can foster
continuous evaluation and improvement of programs, account for a variety of viewpoints, and
provide an opportunity to create better working relationships among all participants in the justice
system.

III. Field Program Notes and Findings

        The Commission’s overall impression from the prosecutors, defenders, judges, and
corrections officials who appeared before it, is that in most state jurisdictions stakeholders in the
criminal justice system are working hard and resourcefully to manage what amounts to a public
health crisis. Substance abuse and mental illness eat up the lion’s share of criminal justice
budgets and skew the priorities of the criminal justice system. Officials from every jurisdiction
admitted that an overwhelming portion of their cases involved elements of substance abuse and
mental illness. While only 20% of state prison and jail populations are charged or convicted of a
drug offense, a much higher percentage of crimes are related to substance abuse. Cook County
(IL) Public Defender Edwin Burnett reported that almost 70% of crimes in the county are drug-
related, and 82% of those arrested tested positive for drugs. Moreover, jails and prisons have
become the institution most likely to house the mentally ill. The Cook County jail holds the
largest number of institutionalized mentally ill people in Illinois: 1,000 of the 11,000 people



18
   Judith Rossi, Connecticut Executive Assistant States Attorney, highlighted in her testimony before the
Commission the Memphis Police Crisis Intervention Team (“CIT”) as an example of a law enforcement agency that
has specially trained officers to provide an immediate response to a crisis involving mentally ill people. The officers
in this unit are trained to interact with the mentally ill, defuse potentially volatile situations, assess medical
information, and evaluate the individual’s social support system. The CIT program transformed the traditional
enforcement-oriented police response to the mentally ill to one that is both more effective and more humane. As a
result, arrests and use of force in dealing with mentally ill offenders has decreased dramatically. See
http://www.memphispolice.org/Crisis%20Intervention.htm.
19
     March 31 Hearing Notes available at http://www.abanet.org/cecs.

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confined there have been diagnosed as mentally ill.20 At the March 31 Commission hearing,
Judge Paul Biebel, Presiding Judge of the Criminal Division in Circuit Court of Cook County,
testified that 16% to 20% of the Illinois prison population have mental health problems. The
Women’s Program at the Cook County jail reported that 80% of its clientele have mental health
issues, often resulting from abusive family relationships.

        While the Commission was impressed and encouraged by the energy and ingenuity of the
criminal justice professionals on the front lines, it observed that in some states the legislature has
been more helpful than in others in creating a structure conducive to developing community-
based treatment programs, and has funded those programs comparatively generously. Arkansas
and Connecticut stand out in this category.

        Since 1993, Arkansas has had a separate Department of Community Correction that is
independent of the state system. In cooperation with the courts, the DCC is responsible for the
administration of several statutory diversion programs that allow certain less serious offenders to
avoid a conviction record if they successfully complete a community-based treatment program in
one of five Community Correction Centers located around the state.21 Any person who is
eligible to be placed on probation, or who is given a “judicial transfer” sentence to DCC for a
“target offense,”22 may upon completion of probation have the charges dismissed and the record
expunged. DCC Director David Guntharpe testified that offenders may be placed in one of
several different programs, including community-based residential treatment centers, whose goal
is to encourage offenders to change the way they relate to the world around them.23 Still in its
early stages, the residential treatment center program has already resulted in a drop in the
recidivism rate among participants from 38% to 31%, and its administrators expect much greater


20
  Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription, The Sentencing Project
(2002), http://www.sentencingproject.org/pdfs/9089.pdf.
21
   See, e.g., the legislative findings of the Community Punishment Act of 1993, Ark. Code Ann. §16-93-1201 et
seq.: “The State of Arkansas hereby finds that the cost of incarcerating the ever-increasing numbers of offenders in
traditional penitentiaries is skyrocketing, bringing added fiscal pressures on state government, and that some inmates
can be effectively punished, with little risk to the public, in a more affordable manner through the use of community
correction programs and nontraditional facilities.” Ark. Code Ann. §16-93-1201(a).

22
   Ark. Code Ann. §16-93-1207(b)(1)(A)-(C). Under Ark. Code Ann. §16-93-1202(j)(1)(A), “target group" means a
group of offenders and offenses determined to be, but not limited to, theft, theft by receiving, hot checks, residential
burglary, commercial burglary, failure to appear, fraudulent use of credit cards, criminal mischief, breaking or entering,
drug paraphernalia, driving while intoxicated, fourth or subsequent offense, all other Class C or Class D felonies which are
not either violent or sexual and which meet the eligibility criteria determined by the General Assembly to have significant
impact on the use of correctional resources, Class A and Class B controlled substance felonies, and all other unclassified
felonies for which the prescribed limitations on a sentence do not exceed the prescribed limitations for a Class C felony
and that are not either violent or sexual.
23
   The residential programs are organized on a therapeutic model, and offer structure, supervision, drug/alcohol
treatment, educational and vocational programs, employment counseling, socialization and life skills programs, and
other forms of treatment and programs. When an offender is assigned to a community-based correctional center the
treatment focus is a multi-level approach designed to re-socialize the pattern of thinking and behavior, and the goal
is for pro-social choice and actions to become automatic and reflexive for the offender. To achieve the desired re-
socialization, the residents are taught new concepts, new values, and rules of expected conduct. The program also
provides substance abuse treatment. Another key aspect of the program is peer mentoring. Through peer
mentoring, offenders are able to see another person with similar circumstances living a new way of life.

                                                                                                                        107
reductions as more personnel are trained.24 DCC also offers non-residential probation services,
including community-based substance abuse and mental health treatment services, day reporting
centers, intensive supervision, and drug courts.25 Once participants successfully complete their
required program, DCC issues a certificate of completion and in addition a draft order to submit
to the court to have the charges dismissed. Once the charges are dismissed offenders are eligible
to have the record expunged (“sealed”), as long as they have no more than one prior felony, and
that prior felony is not a serious violent offense.26 The Arkansas Department of Community
Corrections also has a Special Needs Unit for dually-diagnosed offenders who have records of
substance abuse, mental health, and/or medical issues. The Arkansas program operates within a
therapeutic community model, and it has seen the recidivism rate drop to 25%.

         The Arkansas DCC has committed itself to reducing recidivism rates among the
population that comes through its programs. Its efforts extend to assisting “graduating”
probationers in obtaining an expungement of their criminal record.27 The DCC has evidently
been successful in persuading the Arkansas legislature that its efforts to facilitate offender
reentry are cost-effective, because it has been generously funded and otherwise supported in its
efforts to approach the problem of recidivism in a comprehensive manner. The governor has also
been supportive of its efforts, according to Milton Fine, Legal Counsel to Governor Huckabee,
who testified to the governor’s interest in offender reentry.

24
  Prior to DCC moving to the therapeutic community concept, the DCC conducted a 3-year recidivism study of 322
residents released from community corrections centers between March 1995 and March 1998. Results indicate a
composite recidivism rate of 38% for the 3 year period. Another study was conducted of 900 randomly selected
male and female offenders released from the CCC which operated in the therapeutic community environment prior
to March 1, 2000 and yield a 38% recidivism rate.
25
   Arkansas Department of Community Corrections supervises 28 drug courts, which are usually post-adjudication
courts that handle probation cases involving drug addicted offenders through intense supervision, monitoring, and
treatment programs. Successful completion of the drug court can result in the dismissal of charges, reduced or set
aside sentences, lesser penalties, or a combination of these. Generally, a post-adjudication drug court program lasts
for an average of twelve months with a 2 year strictly supervised probation aftercare program.
26
  See Ark. Code Ann. §§ 16-90-901 through 16-90-905. One reported shortcoming of the Arkansas diversion
programs is that the state police and other record-retention agencies are not properly updating the records to reflect
the dismissals and expungements, so that offenders are facing challenges in explaining arrest record to employers
even if no conviction is listed in the system. Public Defender Commission Director Didi Sallings told the
Commission that many offenders are in need of legal assistance in expunging criminal records, and that the state
public defender commission is seeking additional resources to provide these services.
27
  David Guntharpe testified that his legal staff had recently discovered a little-known Arkansas statute that allows
probationers who have successfully completed all of the terms of their probation to petition the court to dismiss the
charges against them and expunge the record. Under Ark. Code Ann. § 5-4-311(a) and (b), probationers for whom a
judgment of conviction was not entered, including those who went to trial, are entitled to apply to the sentencing
court upon completion of supervision for an order dismissing the charges, and “expunging” the record.
Understanding that many of the people supervised by his agency do not have the means to hire a lawyer and go to
court, Mr. Guntharpe directed his staff to prepare a model petition form to give to each probationer as he or she
“graduates,” so that they can easily file the form with the court and obtain expungement. A person whose record is
expunged “shall have all privileges and rights restored, shall be completely exonerated, and the record which has
been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.”
§ 16-90-902(a). Upon the entry of the order to seal, the underlying conduct “shall be deemed as a matter of law
never to have occurred, and the individual may state that no such conduct ever occurred and that no such records
exist,” including in response to questions. § 16-90-902(b).

                                                                                                                     108
        Connecticut is another state that has given high priority to the development of
community-based alternatives to incarceration. William Carbone, Executive Director of Court
Support Services Division in the State of Connecticut Judicial Branch, told the Commission that
since the 1980s Connecticut has implemented community-based alternatives so that prison, the
most costly punishment option, becomes the option of last resort. The Office of Alternative
Sanctions in the Judicial Branch now serves more than 6,000 offenders daily in a statewide
continuum of treatment, services and community-based monitoring for both pre-trial and
sentenced offenders placed on probation with an annual operating budget of over $41 million.
At each Connecticut court location, offenders are screened to determine if they are appropriate
for alternative programming, and the Office of Alternative Sanctions provides recommendations
to the sentencing judge. Programs are designed for first-time offenders, for chronic offenders
who would otherwise be faced with a prison term, for substance abusers and those with mental
health issues, domestic violence, school violence, and hate crimes. Every court location in the
state has access to mental health and substance abuse evaluations and outpatient treatment
through a specialized network of advanced behavioral health services.

        For Connecticut’s more risky and chronic offenders, an Alternative Incarceration Center
offers daily group programming for more than 1,200 pre-trial and sentenced offenders in the
areas of drug abuse, anger management, employment, and community service. In addition, the
Office of Alternative Sanctions has 450 residential treatment beds for offenders in need of in-
patient care. The inpatient programs can range from 30 days to over one year, providing services
ranging from substance abuse to halfway houses for the youthful offender programs. About two-
thirds of offenders successfully completed the programs offered by the Office of Alternative
Sanctions, and the programs have been shown to produce lower recidivism rates among their
participants.28

        In New York and Oregon, prosecutors have taken the lead in developing drug treatment
and community corrections programs. The Kings County (Brooklyn, NY) District Attorney’s
office offers a wide range of rehabilitative and educational programs designed to reduce
recidivism and provide the defendant with rehabilitative, educational and service opportunities
that will result in a dismissal of the new arrests. District Attorney Joe Hynes has developed
numerous programs aimed addressing the underlying issues behind the criminal behavior, such
as substance abuse, mental health issues, and lack of job opportunities. Kings County offers
felony diversionary programs through the Brooklyn Treatment Court and the Mental Health
Court, and many of the programs are available to offenders with prior convictions. The DTAP
program (described in the Justice Kennedy Commission Report) specifically targets repeat
felony drug offenders who are facing lengthy prison term, and makes exceptions for some


28
  A 1990 University of Connecticut study compared offenders placed in alternative programs with a control group
of incarcerated offenders, and concluded that offenders placed in alternatives had substantially lower rearrest rates;
the best rates involved the youngest offenders where the rate differentials were 3 to 1. An investigation by the
Connecticut General Assembly’s Legislative Program Review and Investigations Committee found in 2005 that
two-thirds of the offenders in the Alternative to Incarceration network had not recidivated at the one-year follow-up
point. Another study of Connecticut alternative programs, conducted by Justice System Assessment and Training
consulting firm from Boulder, Colorado, found that 72% of program participants had not recidivated during the 14
month follow-up period. Domestic Violence (“DV”) offenders have even promising figures with 90% not being
rearrested for a DV offense and 75% not rearrested at all for any offense, according to a 2005 National Institute of
Justice funded study.

                                                                                                                   109
violent offenders with the victim’s consent.29 The District Attorney’s TADD Program
(Treatment Alternatives for Dually Diagnosed Defendants) diverts mentally ill persons charged
with felonies and misdemeanors from incarceration in all of Brooklyn’s criminal courtrooms.
Kings County also offers ten diversionary programs and two specialty courts for misdemeanor
charges.30 Brooklyn has seen serious crime drop overall by 75% from 1990 to 2005.

         The prosecutor’s office in Multnomah County (OR) offers the Sanction Treatment
Options Progress (STOP) Program to persons charged with criminal possession of relatively
small (personal use) quantities of a controlled substance the opportunity to successfully complete
drug treatment and avoid prosecution. Multnomah County District Attorney Mike Schrunk
testified that the offender must plead guilty or no contest and meet other eligibility requirements
in order to be admitted into the program. The STOP program is typically 12 to 15 months in
duration and provides treatment, random drug testing, and regular court appearances before the
STOP judge. Upon satisfactory completion of the program, the court will dismiss the charges
with prejudice.

         The District Attorney’s office also sponsors Project Clean Slate, through which offenders
who have served their sentence are given an opportunity to have their records expunged by the
court. In Multnomah County, expungement requests are brought to the court by the DA’s office,
and the court generally grants any request upon the prosecutor’s recommendation. Mr. Schrunk
testified that he regards expungement as a critical service for former offenders, since a
conviction record can hinder them in getting jobs and housing.31 He recommended that the
Commission advocate for a national standard on record-clearing.

        In all of the states that the Commission heard from, prosecutors take advantage of laws
that authorize diversion of offenders into probation programs, with the promise of a clear record
upon successful completion. In Maryland, prosecutors may allow a defender to obtain
“probation before judgment” (“PBJ”) to avoid a criminal conviction. The court may defer
judgment and place a defendant on probation subject to reasonable conditions, if (i) the court

29
   The National Center on Addiction and Substance Abuse at Columbia University (CASA) conducted an extensive
study of the DTAP program, and concluded that the average cost of placing a participant in DTAP, including drug
treatment, vocational training and support services was $32,975 as compared to an average cost of $64,338 if the
participant had been placed in prison. See Crossing the Bridge: An Evaluation of the Drug Treatment Alternative-to
Prison (DTAP) Program (March 2003).
30
  Misdemeanor diversionary programs include: TIP (2 day drug awareness program); STOP LIFT (shoplifting
awareness program); TASC (inpatient/outpatient drug treatment); KCDA AA (10 week alcohol program); Driver
Improvement (Driver Safety Course); Community Service (defendants sentenced to perform work in the
community); Mental Health Diversion (immediate treatment offered at night arraignments to non-violent minor
offenders with mental illness); Project Respect (provides education for those arrested for patronizing prostitutes);
STARS/EPIC- Intensive multidiscipline treatment/assistance/counseling for prostitutes; YCP (Faith-based youth
mentoring) YCP and TASC are also available to felons. In addition, misdemeanor drug court, domestic violence
court and a community court also provide diversionary programs.
31
  Or. Rev. Stat. § 137.225(1) through (12) authorizes sentencing court to “set aside” misdemeanors and minor
felonies (Class C, except sex and traffic offenses, and some other minor crimes). Upon application, order must issue
unless the court makes written findings by clear and convincing evidence that granting the motion would not be in
the best interests of justice. § 137.225(11). A set-aside restores all rights and relieves all disabilities – conviction
deemed not to have occurred. “Upon entry of such an order, such conviction, arrest or other proceeding shall be
deemed not to have occurred, and the applicant may answer accordingly any questions relating to their occurrence.”
Or. Rev. Stat. § 137.225(4).

                                                                                                                    110
finds that the best interests of the defendant and the public welfare would be served; and (ii) if
the defendant gives written consent after determination of guilt or acceptance of a nolo
contendere plea.32 If probation is successfully completed, the court discharges the defendant
from probation without judgment of conviction, and such discharge “is not a conviction for the
purpose of any disqualification or disability imposed by law because of conviction of a crime.”33
The person discharged from probation may also petition the court for expungement of police or
court records relating to the charges after a three-year waiting period, as long as the petitioner
has no subsequent offense that involved a possible sentence of imprisonment.34 In addition,
under Maryland law, judges have sentence revision authority for five years after imposition of
sentence, and may reduce the sentence to “probation before judgment” in order to accomplish
expungement of the criminal record. Baltimore States Attorney Patricia Jessamy testified the she
has available several community corrections programs, including a drug court.

        In Michigan, according to Saginaw County DA Michael Thomas, prosecutors are
beginning to recognize the importance from a public safety perspective of keeping less serious
offenders from going to prison through diversion programs, and of helping those who have gone
to prison reenter the community. Yet reentry concepts are relatively new ones. Mr. Thomas,
who co-chairs the Reentry Committee of the National District Attorneys Association with Ms.
Jessamy, noted ruefully that “You have to explain reentry to most prosecutors.”

       Kansas recently enacted a drug treatment program for non-violent offenders charged with
drug possession, called Senate Bill 123.35 The program provides up to 18 months of drug
treatment through state-approved community providers, and subsequent intensive supervision by
a probation officer who assists with job training, housing, and other social services. An
innovative aspect of Senate Bill 123 is that it recognizes that relapse is a part of recovery, and a
person is eligible for the program more than once so long as he or she is charged with a non-
violent drug possession offense. One shortcoming of the program is that the offender still ends
up with a criminal conviction upon completion of the program. (Kansas does, however, offer
judicial expungement to most felony offenders after a waiting period.)

        Many jurisdictions have developed diversion programs for mentally ill offenders. The
Commission heard from three jurisdictions that have established Mental Health or Community
Courts to meet the special needs of mentally ill offenders, Kings County (NY), Cook County
(IL), and Multnomah County (OR). The creation of diversion programs is very important to this
population because a conviction may render them ineligible for much-needed government
assistance programs, such as Medicaid, which compromises their mental health treatment
programs.

32
     Md. Code Ann., Crim. Proc. §6-220(b)(1).
33
     Md. Code Ann., §6-220(g).
34
   Md. Code Ann., §§10-105(a)(c)(2)(ii). A PBJ record that has been expunged may be opened only upon court
order, with notice to person concerned and a hearing, or upon ex parte application
by the states attorney and a showing of good cause. § 10-108(a) through (c). PBJ conviction that has been expunged
need not be reported, § 10-108, and an expunged conviction may not be used to deny employment or licensure. § 10-
109. A PBJ sentence, if expunged, may not be used to enhance subsequent
sentence. See U.S. v. Bagheri, 999 F. 2d 80 (4th Cir. 1993).
35
     March 31 Hearing Notes, available at http://www.abanet.org/cecs.

                                                                                                              111
         Community Courts are also being used in many jurisdictions. Multnomah County (OR)
established the first Community Court in 1998 to target offenders charged with quality-of-life
crimes that diminish citizens'  pride and sense of safety in their neighborhoods. The goal of this
court was o provide the offender with underlying services to address the issues that led them into
the criminal justice system.36 When a person is arrested for a non-violent, non-traffic
misdemeanor or violation, he or she is cited for arraignment in Community Court by the
arresting officer. At arraignment, the person may decide to enter the Community Court program
or the traditional trial docket. If the person chooses Community Court, a member of the social
services team interviews and assesses him or her for social services needs. During assessment,
the social services staff may make referrals to social services such as Oregon Health Plan, state
public assistance, mental health or drug and alcohol counseling. The Community Court judge
receives the social service assessment and may assign the person to social services, community
service, or a combination of both as a part of the Community Court sanction. Once the person
completes the assignment, the case is closed, and the charges are dismissed.

        The Red Hook Community Court in Brooklyn, New York is a shining example of an
innovative community based program. Red Hook Judge Alex Calabrese told the Commission
how the court was born in response to a community tragedy, the death of a popular school
principal in the cross-fire of a drug gang fight. Red Hook is a multi-jurisdictional court where
one judge has jurisdiction over all of the issues facing a criminal defendant, including housing
and domestic matters. More importantly, the court seeks to address the problems that led to the
defendant’s criminal behavior, which may include addiction, homelessness, lack of education, or
mental health issues. A typical sentence may include mandatory drug treatment, job training,
adult education classes, community service, or a combination of these services.

         One of the pioneering aspects of Red Hook is that it offers people in the community the
opportunity to obtain social services even if they are not charged with a crime. Because the court
has a single focus, it is able to focus on prevention, by providing social services in order to help
troubled young people avoid continued interaction with the criminal justice system. The Red
Hook court participates in community outreach, even sponsoring a local youth baseball league.
The Kings County District Attorney and the Legal Aid Society both sponsor and coach local
teams. Red Hook’s idea of engaging the community to assist with crime prevention and to solve
local problems before they end up in court is quite impressive and has made a dramatic change in
the attitudes of the community of Red Hook toward the justice system.

           Conclusion

        The testimony taken by the Commission, and its field findings, establishes the beneficial
effects, in terms of reducing recidivism, of programs providing alternatives to incarceration and a
conviction record. These programs seem to be particularly effective when they are initiated by a
prosecutor’s office, or when they are the product of working groups composed of prosecutors as
well as defenders. The Commission believes that these programs, whether they are denominated
diversion or deferred adjudication or some other name, should be open to all but the most serious
offenders. The Commission also believes that if these programs become more widely known
they can be emulated to good effect across the country, and that this will not only reduce the

36
     http://www.co.multnomah.or.us/da/cc/faq.php#30
                                                                                                 112
prison population but will also reduce the incidence of criminal behavior and enhance public
safety.

                                               Respectfully submitted,

                                               Stephen A. Saltzburg, Co-Chair
                                               James R. Thompson, Co-Chair
February 2007




                                                                                               113
                   AMERICAN BAR ASSOCIATION
               COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                            CRIMINAL JUSTICE SECTION
                    NATIONAL DISTRICT ATTORNEYS ASSOCIATION
                  NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                       REPORT TO THE HOUSE OF DELEGATES
             [ON IMPROVEMENTS IN PROBATION AND PAROLE SUPERVISION]

                                     Recommendation

RESOLVED, That the American Bar Association urges federal, state, territorial and local
governments to develop and implement meaningful graduated sanctions for violations of
parole or probation as alternatives to incarceration. Incarceration may be appropriate
when:

       i) an offender commits a new crime or engages in repeated violations;
       ii) lesser sanctions, including appropriate treatment options, have not been
            effective; or
       iii) the offender poses a danger to the community.

In those cases where an individual is sent to jail or prison as a sanction for a violation of
probation or parole, the period of incarceration should be that reasonably necessary to
modify the individual’s behavior and deter future violations.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to distinguish between probation/parole violators who
would benefit from community supervision and those who would not, and to deploy
community supervision resources accordingly.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to provide adequate resources and funding to ensure that
the quality and intensity of supervision for offenders is significantly increased.
Manageable case-loads for probation and parole officers ensure that sanctions imposed in
lieu of incarceration are meaningful; reduce the likelihood of recidivism; and increase the
chances for successful rehabilitation.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments, to create standards for the performance of probation or
parole officers that will consider, in addition to other appropriate factors, the number of
individuals under an officer’s supervision who successfully complete supervision, as well
as those whose probation or parole is appropriately revoked, taking into account the
nature of the officer’s caseload.




                                                                                                114
                                                REPORT

        Parole and probation supervision is an important part of any discussion of
sentencing alternatives and recidivism. The number of people returned to state prison for
a parole violation increased sevenfold between 1980 and 2000, from 27,000 to 203,000,
and parole violators now account for more than one third of all prison admissions.1
Almost half of all parolees return to prison or jail within 24 months of their release.2 As
prison populations grow and increasing numbers of offenders are released on parole, it is
not surprising to find some increase in parole violations. But, the magnitude of the
numbers involved suggests that substantial resources are being devoted to identifying
every violation of parole conditions and to making revocation the preferred sanction for
all violations. There is a growing body of evidence suggesting that this practice results in
an expenditure of resources that does not improve public safety. Indeed, a recent study
by the Urban Institute calls into question the extent to which parole and probation
supervision, as currently administered, is effective in reducing recidivism rates or
otherwise enhancing public safety. The study found that offenders under supervision are
re-arrested for new crimes at about the same rate as offenders released unconditionally.3

        In 2004, the Justice Kennedy Commission recognized the enormity of the
problem raised by the state of parole and probation supervision in this country. The
revolving door in which inmates were released to the community and returned to prison
for minor violations of their release conditions was most evident in California, where the
cost of incarcerating parole violators was estimated at $900 million. In the words of
California’s Little Hoover Commission, “California has created a revolving door that
does not adequately distinguish between parolees who should be able to make it on the
outside, and those who should go back to prison for a longer period of time.”4 But this

1
 Jeremy Travis & Sarah Lawrence, Beyond the Prison Gates: The State of Parole in America at 21, The
Urban Institute Justice Policy Center, November 2002, available at
http://www.urban.org/UploadedPDF/310583_Beyond_prison_gates.pdf.

2
 Reentry Trends in the U.S.: Success rates for State parolees, Bureau of Justice Statistics, available at
http://www.ojp.usdoj.gov/bjs/reentry/success.htm. See also Amy Solomon, Does Parole Supervision
Work? at 27(Urban Institute 2005)(available at
http://www.urban.org/UploadedPDF/1000908_parole_supervision.pdf) citing Glaze, L.E. and S. Palla ,
Probation and Parole in the United States, 2004., Bureau of Justice Statistics Bulletin 2005 (46% of
parolees do not complete term successfully).

3
  Amy Solomon found that mandatory parolees released conditionally were re-arrested at approximately the
same rate as prisoners released unconditionally, without supervision. Solomon, note 2 supra. Discretionary
parolees released conditionally under supervision (who, unlike mandatory parolees, have been the subject
of a discretionary parole board decision that they are ready to return to the community) were somewhat less
likely to be rearrested, but the difference is relatively small.
4
 Little Hoover Commission, Back to the Community: Safe and Sound Parole Policies, Executive
Summary, at i (November 2003). In her recent study of the California correctional system, Joan Petersilia
describes the parole system in California as a “nonstop game of catch-and-release,” in which 66% of
parolees were back behind bars within three years, 27% for a new crime, and 39% for a “technical” parole
violation. Joan Petersilia, Understanding California Corrections at 71 (California Policy Research Center,
2006), citing Ryan Fischer, “Are California’s Recidivism Rates Really the Highest in the Nation? It


                                                                                                              115
problem is not unique to the state of California, and parolees and probationers account for
a majority of prison admissions in most states. Moreover, of the parole violators returned
to prison, more than two-thirds were incarcerated for a violation of the conditions of their
release, rather than commission of some new criminal violation.5

         It became abundantly clear to the Commission in the course of our hearings that
parole and probation supervision is a critical part of the recidivism puzzle, for two
reasons: first, probation and parole agents exercise tremendous discretion through their
revocation power in deciding whether an offender has violated conditions of supervision
in the first place, and whether an offender should be returned to prison. Second,
probation and parole agents are in a position to play a key role in assisting people
returning home from prison to readjust to the community and stay out of trouble. Many
jurisdictions are re-evaluating their approach to offender supervision and realizing that
the successful reintegration of the offender must be a primary goal of community
supervision. Offenders who successfully rejoin the community are less likely to commit
future crimes than offenders who fail. The bottom line is that reintegration of offenders
promotes public safety and should therefore be the primary goal of any system of
community supervision.

       The policy recommended by the Justice Kennedy Commission, subsequently
adopted by the ABA House of Delegates, was that jurisdictions should develop graduated
sanctions for probation and parole violations, and reserve incarceration for cases where
“a probation or parole violator has committed a new crime or poses a danger to the

Depends on What Measure of Recidivism You Use,” UCI Center for Evidence-Based Corrections, Irvine,
California,Vol. 1, September 2005. Available at http://ucicorrections.seweb.uci.edu/. California’s abscond
rate of 17% is the highest of any state in the nation, and far above the national average of 7%. Professor
Petersilia echoes the concerns of other criminal justice researchers that the misallocation of community
supervision resources is one cause of this problem: many high-risk offenders on parole receive too little
monitoring while many non-dangerous offenders stay on parole too long, so that sooner or later they will be
caught up in some trivial indiscretion and sent back to prison. Also, the lack of treatment resources
provided by community supervision agencies can result in high re-incarceration rates. For example,
California routinely orders near-universal drug testing for all parolees, although two-thirds of them have
substance abuse histories and only 2.5% receive any professional drug treatment while in prison, compared
to a national average of 19%. Id. at 41. See also Petersilia and Weisberg, Parole in California: It's a crime,
Los Angeles Times, April 23, 2006, available at http://www.latimes.com/news/opinion/commentary/la-op-
petersilia23apr23,1,3727887.story. Thus, parolees invariably fail the test which results in a violation and a
return to prison. The state should either provide more drug treatment in prison, or less testing in the
community, or at least a more flexible approach to test failures.
5
  Travis, et al. supra note 1 at 22, citing U.S. Department of Justice, Bureau of Justice Statistics,
NCJ178234. Typical noncriminal violations of parole involve the obligation to report regularly to a parole
officer, keep a curfew, stay within a particular geographic area, avoid the use of drugs and the company of
known felons, and participation in treatment programs. A violation of any of these conditions can result in
revocation of parole or probation and incarceration. In some cases a system may use the revocation
violation process as a short-cut administrative route, including its lower standard of proof, to return people
to prison who are alleged to have committed serious new crimes. See, e.g., Joan Petersilia,Understanding
California Corrections, supra note 4 at 73 (“California uses technical violations to address a wide range of
serious criminal behavior that other jurisdictions would handle through re-arrest and prosecution.”).




                                                                                                                 116
community.” The Commission reaffirms this position, and makes several further
recommendations to make parole and probation systems more efficient and more likely to
promote public safety. First, jurisdictions should continue to develop meaningful
graduated sanctions for violations of parole or probation, as recommended by the Justice
Kennedy Commission, as an alternative to incarceration. They should not return an
offender to prison for a violation of the conditions of release, unless that individual has
committed a new crime, engaged in repeated violations, lesser measures have been
unsuccessful, or the offender poses a danger to the community.6 A brief period of re-
incarceration in a community custody facility may benefit a parolee who is having
difficulty adjusting to freedom. But an automatic return to the penitentiary for violations
that do not amount to a crime, without addressing the reasons for the non-compliance, is
unlikely to be beneficial to the individual, is costly, and may actually be harmful to the
community in the long run. The Urban Institute study found that parolees returned to
prison for the remainder of their sentence for minor violations, and finally released
without supervision, were more likely to be re-arrested for a new crime than any other
release group.7

         Ordinarily, less serious violations of the terms of supervision can be better
addressed through community-based sanctions other than incarceration that focus on the
reasons for non-compliance, because many violators suffer from treatable issues such as
substance abuse, mental illnesses, or lack of life skills that could be remedied through
treatment services. The Commission heard testimony from many witnesses that parolees
and probationers will often slip up several times before they adjust, particularly where
they have a substance abuse problem. It concluded therefore that a return to prison will
be appropriate only where an individual engages in repeated violations and lesser
sanctions, including appropriate treatment options, have not been effective. In cases
where imprisonment must be used as a sanction, the length of incarceration should be
determined by what is reasonably necessary to modify the individual’s behavior and
deter future violations.8 If incarceration is deemed appropriate at all, a short-term return
to jail will often be more useful than a return to the penitentiary.

6
 The Commission is aware of the criticism leveled at the California parole system, and does not endorse
routine use of an administrative recommitment process, with its less adversarial process, lower burden of
proof, and shorter periods of commitment, to address serious new crimes committed by parolees. See
Petersilia, supra note 4 at 73-75.
7
 Solomon, supra note 3 at 33. A recent study released by The Women’s Prison Association found that
   Supervision conditions set by probation and parole authorities can scuttle a woman’s best efforts to
   comply with an overload of rigid rules and requirements. Policy changes designed to reduce
   technical violation rates, such as the use of intermediate sanctions, should have favorable results for
   women, since many are revoked to prison for violations of community supervision requirements
   related to substance abuse or conflicts between reporting requirements and family responsibilities.
Hard Hit: The Growth in Imprisonment of Women, 1977-2004 (2006)

8
  The Commission considered and rejected a proposal to recommend that “offenders under community
supervision should be sent or returned to prison only as a last resort, and generally only upon commission
of a new crime that would warrant incarceration if committed by someone not subject to conditional
release.”



                                                                                                             117
        A second way that jurisdictions can improve their probation and parole systems is
to distinguish between offenders who would benefit from community supervision and
those who would not, and to deploy community supervision resources accordingly. The
ultimate goal of preventing re-offending, breaking substance abuse habits, and, in the
end, changing parolees’ lives for the better is elusive for many parole and probation
officers because of the everyday realties of high caseloads and lack of resources. A study
of reentry policies published by the Council of State Governments reported that parole
officers’ caseloads may average 70 parolees each, translating to one or two 15 minute
meetings a month.9 Probation caseloads are even larger, averaging roughly 130
probationers per officer. And, these numbers are on the low-end for many jurisdictions.
While lower caseloads do not ensure success, such high caseloads make it virtually
impossible for the parole officer to address the needs of the offender. It is not surprising,
in the view of the poor preparation that most prison inmates receive for their release and
the lack of support services available to them in the community to assist with reentry, that
many who are released on parole may find adjustment to freedom difficult. And once
they are faced with these challenges, it is virtually impossible to receive the support
needed during “15 minute visits” with their parole officers.

        Research has shown that the first weeks after an offender’s return to the
community are critical. It is this period in which offenders require additional support in
order to ensure that they do not slip back into old patterns of criminal behavior.10 The
Commission recognizes that additional resources may not be available to provide
additional assistance during the early weeks of supervision. However, it is imperative
that existing resources be allocated so that offenders who need the most help get it.
Research has shown that some offenders do not need intensive supervision and may be
better off without any at all.11 If resources were targeted to high-risk offenders who

9
 Report of the Re-entry Policy Council: Charting the Safe and Successful Return of Prisoners to the
Community (Council of State Governments) at 372, available at
http://www.reentrypolicy.org/rp/AGP.Net/Components/DocumentViewer/Download.aspxnz?DocumentID
=1152.
10
  Report of the Justice Kennedy Commission at 82. Available at
http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf
11
  See Petersilia, supra note 4 at 70:
         For some inmates, who are unlikely to reoffend and pose a low safety risk to the community
         in any case, this type of arrangement [minimal supervision] may be just fine—except in that
         case it is not clear why the State of California should bother keeping them on parole. For
         other, more risky inmates, the abrupt reintegration into wholly unstructured life is likely to
         spell trouble. In those cases, allocating resources for more intensive parole supervision could
         help prevent problems before they start.
Professor Petersilia reports that only one in five California parolees supported themselves through money
earned from employment during their first year after prison release:
        Work that is available to parolees is often unskilled, with restricted opportunities to advance
         or to assume a supervisory role, and it therefore often provides a minimum-wage salary that
         supports a subsistence-level existence. . . . Unfortunately, the potential for material gain
         through criminal behavior looks more realistic to some parolees than the prospect of
         escaping poverty through legitimate employment.


                                                                                                            118
evidently need assistance in adjusting to release, especially in the first weeks of
supervision, overall caseloads could be reduced. Reduced caseloads may actually result
in fewer violations, since parole and probation officers will be focusing their efforts on
offenders who pose the greatest risk of returning to criminal behavior. Success with
these individuals holds out the promise of reducing overall recidivism and promoting
public safety.12 The goal is to significantly increase the quality and intensity of
supervision so that sanctions imposed in lieu of incarceration are meaningful, thereby
increasing the chances for successful rehabilitation while reducing the likelihood of
recidivism.

        A third way jurisdictions can improve their parole and probation systems is to
change the way probation and parole agencies perceive their role in offender supervision
and the way in which probation and parole officers are themselves evaluated. In recent
years, some parole and probation officers have come to view themselves as functioning in
a law enforcement rather than social service capacity, and see themselves as adversaries
of rather than mentors to an offender. This perception produces a mode of performance
that is more oriented toward surveillance than assistance. Officers work to catch an
offender in some act of disobedience and are unwilling to tolerate the predictable slips
that accompany adjustment, particularly where substance abuse is involved. In too many
jurisdictions, probation and parole officers play the role of enforcer, identifying with the
police more closely than with community institutions that might offer support to an
individual trying to stay out of trouble.13 This culture is reinforced when job
performance is measured by the number of parole and probation revocations issued and
the number of people sent to or returned to prison.

        If parole and probation officers are empowered and encouraged to utilize
sanctions other than outright revocation when offenders violate the conditions of
supervision, if they are permitted to focus their energy on offenders who need the most
help, and if an important factor in assessing the performance of officers is their success in
helping offenders reintegrate, there is a greater opportunity to enhance public safety by
enabling offenders to overcome addictions, find housing, receive job training and
placement assistance, and other services. Public safety must remain the central
responsibility of parole and probation agencies, but it is not enhanced by taking offenders
whose behavior could be modified and recycling them in and out of prison without



12
  Reduced parole caseloads are an important feature of the model reentry programs offered by the Illinois
Department of Corrections through the Sheridan Correctional Center. The goal of the Sheridan program is
to prepare offenders for reentry while they are still in custody, and provide a continuum of care when they
reenter the community. The Gateway program offers substance abuse programming, and the Safer
Foundation offers job training and placement. Re-arrest rates for graduates of the Sheridan program in
2003 were 5%, as opposed to 51% for the rest of the population under supervision.
13
  The Commission was told that in Cook County, Illinois, parole officers wear sidearms and ride in squad
cars. We understand that this is not unusual, and that in many jurisdictions parole officers have come to
look and act as if they are performing primarily a law enforcement function.



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providing them the tools they need to change. When offenders successfully transform
their lives, they are by definition no longer a threat to the community.

          The Commission heard testimony about encouraging changes beginning in the
culture of parole boards to meet the new understanding of the ways in which successful
reentry enhances community safety. Jorge Montes, Chair of the Illinois Prisoner Review
Board, testified at the Commission’s March 31 hearing that when he joined his Board in
the 1990s, it tended to view parole enforcement in black and white terms, and to treat any
violations with zero tolerance.14 He shared the story of one young man who appeared
before him at a parole revocation hearing. This parolee was required to stay within a
certain geographic area as a condition of his release, which was monitored by an
electronic device. His parole was revoked because he strayed outside of the allowed area
for a period of thirty minutes. The young man explained to Montes at his hearing that he
had been driving home from work and gotten a flat tire, and had been forced to detour
from his regular path in order to get assistance. After hearing this story and considering
other factors, such as the fact the young man maintained full time employment and was
the sole provider for his family of three children, Montes refused to revoke his parole.
However, Montes’ colleagues at the parole board did not agree with his decision and
voted to override his decision. Fortunately, Montes was able to convince his colleagues
to re-consider their vote. But for Montes the original and the reversed decisions
illustrated the difference between the old and new approach to parole revocation in
Illinois.

         Mr. Montes testified that he has been committed to changing the culture at the
Illinois Prisoner Review Board throughout his tenure as Chair of the Board. He pointed
out that when he first joined his board, none of its members had been trained on issues
related to offender reentry and alternatives to incarceration. The members did not feel
that the personal issues facing offenders under their supervision were any of their
concern, and failed to appreciate that successful re-entry of offenders was a critical link
to sustaining public safety. Montes testified that the culture of the Illinois Board began to
change in 2002, when board members were required to consider the impact of their
decisions on the recidivism rate. The Board realized that it was not a law enforcement
agency and should be addressing offender re-entry and recidivism. As in many other
jurisdictions, the traditional approach is changing as parole agencies realize that they
have a stake in successful reentry, and work to help the parolee contribute positively to
their community.

        The Illinois Prisoner Review Board is also instituting new programs to handle
parole revocation cases more efficiently, so as to avoid unnecessary incarceration.
Through this new program, parole revocation cases are reviewed during initial jail intake
to determine if there are alternative programs available in the community as opposed to
incarceration. If alternative programs are available, then the detention hold is lifted and
the person is released under community supervision.


14
     March 31 Hearing Notes, available at http://www.abanet.org/cecs.



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        Some of the other states whose officials testified have also begun taking a new
approach to parole violators. The Arkansas Department of Community Correction
instituted a formal Technical Violators (“TV”) Program two years ago, which provides
community based treatment services to parole violators for a period of 30 to 90 days as a
prison alternative sanction.15 The TV Program is an intensive residential program
followed by aftercare under community supervision. A resident completes the following
stages of the program:

     •   Intake: a three day processing period.
     •   Orientation: a five day period where resident receives an overview of the purpose
         and structure, rights and responsibilities, assessment of factors contributing to
         violations, and strategy developments for compliance through treatment. This
         phase includes a counselor and may include a supervising parole/probation
         officer.
     •   Treatment: a four to five week period devoted to fulfilling the treatment plan
         requirements.
     •   Pre-Release: the last three weeks of confinement include activities and classes
         focusing on transition and practical matters associated with relapse prevention and
         increased parole/probation officer involvement.

Throughout the entire program, the parole/probation officer maintains contact with the
offender at least once a day, either through a personal visit or telephone call. This contact
fosters a continuous relationship between the offender and the parole/probation officer,
demonstrates the officer’s interest in the offender’s progress, and allows discussion of
aspects of the parole plan for release.

          The Arkansas Technical Violators program began two years ago with female
offenders. To date, only 14% of the participants have committed new crimes and been
sent back to prison. In March 2005, a new 300-bed program for men was started, and in
its first year 1200 people have gone through centers with only 2% of the participants
returning to prison. This program serves as an inspiring example of how recidivism rates
can be lowered by addressing the causes of non-compliance with the terms of supervision
through therapeutic methods.

        Connecticut also has an Offender Re-entry and Technical Violations Program to
reduce parole and/or probation violations.16 Connecticut understood it had a problem
when it was incarcerating over 2,000 people on non-criminal violations each year, and
instituted reforms to prevent re-incarceration by intervening and assisting offenders who

15
  Testimony of David Guntharpe, Director of the Arkansas Department of Community Corrections, ABA
Commission on Effective Criminal Sanctions Hearing, March 3, 2006, available at
http://www.abanet.org/cecs. In addition, information about the Arkansas program is also available on this
website under Hearing Materials.
16
   Testimony of William Carbone, Executive Director of Connecticut Court Support Services Division of
the Judicial Branch, ABA Commission on Effective Criminal Sanctions Hearing, March 3, 2006, available
at http://www.abanet.org/cecs.



                                                                                                            121
are violating their terms of release and are on the brink of returning to prison. The
offender is referred to a special probation unit, where each officer has only 25 cases and
is able to devote additional time and resources in assisting the offender with the issues
relating to their non-compliance.

        In addition, Connecticut began a Probation Transition Program in October 2004 to
prepare offenders for community supervision prior to release. The program educates
inmates on how to successfully work with community supervision officers. Probation
officers meet with clients 90 days prior to their projected release date, to explain the
terms and conditions of release and to develop a re-entry plan. The probation officers
assigned to this program only have 25 cases and are able to devote more time to each
client during the offender’s initial transitional phase from prison. Offenders remain in
this program for a four month period after release, and then their cases are transferred to a
traditional probation officer who has a much heavier caseload. This program has proven
successful; a study conducted by Central Connecticut State University indicated a nearly
40% reduction in non-criminal violations among participants in the transition program as
compared to a matched control group. The key to this program’s success seems to be its
provisions of additional support for the critical months just after release, when the danger
of recidivism is greatest.

        Both Georgia and Ohio have taken a different approach, offering “incentive”
programs centered around rewards for good behavior and program accomplishments.
The Georgia Parole Board’s Behavior Response and Adjustment Guide describes
different levels of suggested responses (“incentives”) for positive accomplishments by
parolees. Low-level incentives include verbal recognition, a letter of recognition, a
certificate of completion, or a 6-month compliance certificate. Medium-level incentives
include a one-year compliance certificate, Mr./Ms. Clean Award, supervision level
reduction, or reduced reporting requirements. The high-level incentives might include a
commutation recommendation, cognitive skills graduation, lifestyle commitment award,
or reduced reporting. 17 The State of Ohio created a similar program through the
Supervision Accountability Plan, which provides incentives to offenders for compliance
and successful reintegration.18 These programs aim to encourage parole compliance by
re-enforcing and rewarding the accomplishments of offenders under their supervision,
rather than punishing their small and predictable failures.



17
  See Nancy Lavigne and Cynthia Mamalian, Prisoner Reentry in Georgia, available at
http://www.urban.org/UploadedPDF/411170_Prisoner_Reentry_GA.pdf. Low level incentives may be
awarded if the offender is clean of drugs or steadily employed for 90 days, or if the offender has six months
of stable residence. Medium-level incentives can come from 12 months stable employment/residence, few
or no violations, six months clean from substance abuse, or outpatient program completion. High-level
incentives may be awarded for completion of school/GED program, 12 months of a clean drug record, 24
months of stable residence, or a record of pro-social activities.
18
  In Ohio, incentives are given based on a parolee’s Supervision Accountability Plan (SAP) as well as
suggestions from the multi-disciplinary Community Reentry Management Teams that oversee the plan.
Their program is also structured based upon low-level, medium-level, and high-level incentives, which are
rated according to the completion SAP related programs and activities.


                                                                                                                122
        Each of these states has taken a different approach to dealing with parole
violations, but all recognize the need to provide additional support to some offenders
during the re-entry process. Both the Arkansas and Connecticut programs address the
reasons for non-compliance rather than incarcerating parolees without any treatment.
Connecticut’s reduction of its parole and probation caseloads improved the quality and
intensity of supervision, and lessened the likelihood of parole revocations. In most
jurisdictions, high caseloads make it virtually impossible for probation and parole officers
to provide offenders with the level of services needed to both assist with reentry and to
ensure public safety. But states are coming to appreciate that incarceration is the most
costly form of punishment to both society and the offender, and it should be used as a
sanction only after all other remedies are exhausted or when the offender poses a threat to
the community.

        Some of the success of these reforms may be facilitated by extrinsic
considerations peculiar to the states themselves. Both Arkansas and Connecticut are
relatively small states, and both administer their community corrections programs on a
centralized basis. Both have had a good deal of success in convincing the state
legislature that money is well spent on reentry programs, both in short run prison savings,
and in longer range community stability as prisoners return and reestablish themselves
with their families. Both collaborate with a centralized public defender system and, in
Connecticut, a centralized appointed prosecutor staff. In Arkansas, the Community
Corrections Department is independent of the prison system, and has the ear of the
governor. Both the Georgia and Ohio Parole Boards have had strong and forward-
looking leadership in recent years. It is harder to imagine accomplishing these kinds of
reforms in states where community supervision is handled at the county level, where the
political establishment still believes that locking people up is the way to make
communities safer, and where funds are allocated accordingly.

         Discussions with the National District Attorney’s Association led the Commission
to emphasize that different jurisdictions will find different ways to improve the quality of
supervision and the performance of probation and parole officers. In each jurisdiction, it
is important that standards be set for probation and parole officers that recognize that they
are responsible for protecting the community and for facilitating successful re-entry. It
would be undesirable for a jurisdiction to measure the performance of officers solely on
the basis of the number of individuals whose probation or parole was revoked, or on the
number of offenders who completed probation or parole without being revoked. There is
nothing commendable about a system that revokes individuals unnecessarily and imposes
the costs of jail or prison on them and the community while depriving them of the
services and resources that might enable them to successfully complete probation or
parole. Similarly, there is nothing commendable about a system that encourages officers
to let offenders remain in the community when they pose a danger to public safety. Each
jurisdiction ought to encourage its officers to find the right balance and to use meaningful
graduated sanctions to encourage successful re-entry while simultaneously protecting
community safety. This means that officers should be encouraged and trained how to
decide when to revoke the probation or parole and for how long (i.e., for periods that are
reasonably necessary to modify the individual’s behavior and deter future violations), and



                                                                                                123
when to use graduated sanctions that permit an offender to remain free from jail or prison
and to learn from his/her mistakes. The goal is to reward officers for making the best
decisions from the standpoint of the community and the offender.


                                             Respectfully submitted,


                                             Stephen A. Saltzburg, Co-Chair
                                             James R. Thompson, Co-Chair

February 2007




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                      AMERICAN BAR ASSOCIATION
                  COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                                CRIMINAL JUSTICE SECTION
                      NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                        REPORT TO THE HOUSE OF DELEGATES
          [ON EMPLOYMENT AND LICENSURE OF PERSONS WITH A CRIMINAL RECORD]
                                         Recommendation
RESOLVED, That the American Bar Association urges federal, state, territorial and local
governments to develop policy on the employment of persons with a criminal record by
government agencies, and the contractors and vendors who do business with those agencies.
Professional and occupational licensing authorities should develop similar policy for the issuance
of licenses. Except in cases where there is an absolute statutory prohibition on employment or
licensure of persons because of a criminal conviction, as permitted by Standard 19-2.2 of the
ABA Standards for Criminal Justice on Collateral Sanctions and Discretionary Disqualification
of Convicted Persons, and that prohibition has not been waived or modified, the conduct
underlying the conviction should be considered disqualifying only if it substantially relates to the
particular employment or license, or presents a present threat to public safety, consistent with
Criminal Justice Standard 19-3.1. Jurisdictions should develop criteria for determining when
such a substantial relationship exists.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local legislatures to compile an inventory of all collateral sanctions relating to employment and
licensure in the law codes for which they are responsible; where an absolute statutory
disqualification cannot be justified, the legislature should either eliminate it, or modify it to
authorize the employer or licensing authority to waive the disqualification on a case-by-case
basis. Jurisdictions should also inventory all statutes and regulations specifically authorizing
consideration of conviction as a basis for discretionary disqualification from employment or
licensure.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to require that each government agency, and professional and occupational
licensing authority, take the following steps:

       1) Conduct an inventory of employment and licensing restrictions and disqualifications
          based upon a criminal record for each occupation under the agency’s jurisdiction;
       2) Eliminate or modify, to the extent authorized, any such restrictions or
          disqualifications that are either (i) not substantially related to the particular
          employment or (ii) not designed to protect the public safety;
       3) Provide for a case-by-case exemption or waiver process to give persons with a
          criminal record an opportunity to make a showing of their fitness for the employment
          or license at issue, and provide a statement of reasons in writing if the opportunity is
          denied because of the conviction; and



                                                                                                 125
       4) Provide for judicial or administrative review of a decision to deny employment or
          licensure based upon a person’s criminal record.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to authorize a court or administrative agency to enter an order waiving,
modifying, or granting relief from a particular collateral sanction, in order to facilitate an
offender’s reentry into the community, in accordance with Standard 19-2.5(a). Such an order
should be available upon request at the time of sentencing or release from imprisonment, or at
any time thereafter, upon a finding that such relief would be consistent with the rehabilitation of
the offender and the safety of the public, and in the public interest. Where a sentence has not
been fully discharged, relief may be temporary or conditional, and it may be enlarged or
modified by the court or administrative agency at any time upon a showing of good cause. Such
an order will not preclude employers or licensing boards from considering the conduct
underlying the conviction as a factor in discretionary employment and licensing decisions, if that
conduct is substantially related to the particular employment or license sought.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to establish a process whereby a convicted person may, upon completion of
sentence or at some reasonable time thereafter, obtain a judicial or administrative order relieving
the person of all collateral sanctions imposed by the law of that jurisdiction, as provided by
Standard 19-2.5(c). Such an order should be predicated upon a finding that the person has
conducted himself in a law-abiding and productive manner since the conviction, and should
create a “presumption of fitness” that should be taken into account in all discretionary decision-
making by public employers and licensing boards, even if the conduct underlying the conviction
is substantially related to the particular employment or license sought. Such an order may be
conditional upon good conduct where an offender is still under supervision, and may leave in
place a specific collateral sanction if appropriate.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to work with private employer groups to develop job opportunities for people
with a criminal record, and incentives for private employers to hire people with criminal records.

FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to work with employers and others who have a legitimate need for access to
criminal record information to permit its more efficient use, so as to encourage the employment
of persons with criminal records where appropriate. In particular, they should:
       1) to the extent constitutionally permissible, require all agencies and employers seeking
          access to a person’s criminal record to rely upon an officially approved system of
          records;
          except in cases where there is a statutory requirement that an agency or employer
          conduct a criminal background check, require non-law enforcement agencies and
          employers seeking access to an individual’s criminal record to demonstrate that the
          public interest in receiving such information clearly outweighs the individual’s
          interest in security and privacy.




                                                                                                 126
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to make evidence of an individual’s conviction inadmissible in any action
alleging an employer’s negligence or wrongful conduct based on hiring as long as the employer
relied on a judicial or administrative order granting relief from statutory or regulatory barriers to
employment or licensure based upon conviction.




                                                                                                   127
                                                     REPORT

         The ability to get and maintain employment has been identified as a reliable predictor of
a criminal offender’s ability to successfully reenter society after a term in prison, and remain
law-abiding.1 One recent study of reentry in a large metropolitan area showed that those who are
unable to get a job are three times more likely to return to prison than those who find steady
employment.2 Unfortunately, that same study showed that 60 percent of former prisoners were
still unemployed one year after their release from prison.
       Most people would agree that people who have committed a crime should be entitled to a
second chance after paying their debt to society. Very few jurisdictions have figured out how to
accomplish this successfully, however. The statute books in every state are filled with laws that
disqualify people from jobs and licenses based on a criminal record. Even where it does not
mandate exclusion, the law generally allows rejection of applicants for employment (and
termination of existing employees) based solely on the fact of a criminal record. Some private
employers have adopted sweeping policies against employing people with criminal records,
including those who were arrested and never convicted. The increased reliance since 9/11 on
criminal records checks as a screening mechanism makes it much more difficult for the millions
of Americans who have a criminal record to find employment and become productive citizens in
our society.3
         The inability of persons with criminal records to secure employment stems from a
number of factors, including lack of training and skills, and risk-averse attitudes of employers.
Moreover, many of these offenders are returning to communities that are already plagued with
high unemployment rates, which puts them at an even greater disadvantage. But the legal system
itself contributes heavily to the inability of criminal offenders to get and keep jobs, restricting
employment and licensure in numerous professions based solely on a criminal record. While
some restrictions are narrowly tailored to protect against an identified public safety risk, more
often they are categorical and arbitrary, bearing little or no apparent relationship to particular
offense conduct, and without consideration of a particular individual’s post-conviction
rehabilitation.



1
  See, e.g., Joan Petersilia,, When Prisoners Come Home: Parole and Prisoner Reentry at 196 (Oxford Univ. Press
2003)(“Research has also consistently shown that if parolees can find decent jobs as soon as possible after release,
they are less likely to return to crime and to prison.”). Programs devoted to finding work for parolees like the Texas
RIO (Re-integration of Offenders) Project, the New York City Center for Employment Opportunities, and the Safer
Foundation in Chicago, have been found to produce greatly reduced recidivism rates. Id at 197.

2
 Rebuilding Lives. Restoring Hope. Strengthening Communities: Breaking the Cycle of Incarceration and Building
Brighter Futures in Chicago. Final Report of the Mayoral Policy Caucus on Prisoner Reentry at 15 (2006).
3
  The Bureau of Justice Statistics reports that as of December 31, 2003, over 71 million criminal history records
were in the criminal history files of the State criminal history repositories. Some individuals had a record in more
than one state. Survey of State Criminal History Information Systems, 2003 at 2, Bureau of Justice Statistics,
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/sschis03.pdf. A decade earlier, over six million arrest records
were reported to state criminal history repositories. Use and Management of Criminal History Record Information:
A Comprehensive Report, 2001 Update, Bureau of Justice Statistics, Table 6, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/umchri01.pdf


                                                                                                                   128
        Moreover, in most jurisdictions, there is no reliable and generally accessible way of
avoiding or waiving legal disqualifications, or of reassuring an employer that an offender is
rehabilitated and fit for the employment.4 And yet, a recent study has shown that people with a
criminal record that is more than three years old are no more likely to commit a new crime than
people who have no criminal record at all.5
        The bottom line is that many people who are willing and able to work, and who pose little
or no risk to the community, are being shut out of decent jobs because of their criminal record.
This has obvious negative implications for the successful functioning of the criminal justice
system, whose goal, after all, is to reduce crime and make communities safer. Admittedly, this
phenomenon is not new;6 what is new is the scale of the problem. To the extent it is a function
of flaws in the legal system, the legal profession has a responsibility to address it.7

Existing ABA Policy on Systemic Relief from Employment Barriers -

       The ABA has developed a body of policy relating to the employment of people with
criminal convictions. In the Criminal Justice Standards on Collateral Sanctions and
Discretionary Disqualification of Convicted Persons (3d ed.), the ABA has urged the repeal of
laws that automatically exclude people from particular jobs or licenses solely because of a
conviction. Standard 19-2.2 takes the position that such automatic categorical disqualifications
should be very narrowly drawn: “The legislature should not impose a collateral sanction on a
person convicted of an offense unless it determines that the conduct constituting that particular
offense provides so substantial a basis for imposing the sanction that the legislature cannot
4
  See Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A State by State
Resource Guide,(W.S. Hein, 2006), condensed at http://www.sentencingproject.org/rights-restoration.cfm. It bears
emphasis that it is very much in the government’s interest to help people lead law-abiding and productive lives after
they have served their court-imposed sentences. Unfortunately, this does not seem to have occurred to the
legislators and administrators who continue to make and enforce blanket policies of exclusion that provide for no
exceptions.

5
 Megan C. Kurlychek, Robert Brame, Shawn D. Bushway, Enduring Risk? Old Criminal Records and Short-Term
Predictions of Criminal Involvement (forthcoming, draft dated March 2006 available from the Commission office);
Kurlychek, Brame, Bushway, Scarlet Letters and Recidivism: Does An Old Criminal Record Predict Future
Offending? (Fall 2005). Both papers are available from the Commission office.

6
 See, e.g., Final Report of the ABA Commission on Correctional Facilities and Services, When Society Pronounces
Judgment – The Work of the Commission on Correctional Facilities and Services. Five Year Report, 1970-1975,
available from the ABA Criminal Justice Section offices.

7
    The Justice Kennedy Commission framed the issue eloquently:
         Although it came as no surprise to us that most people have a generally unsympathetic response to convicted
        felons, the Commission became acutely aware of an irony that is readily apparent in our treatment of men and
        women sentenced to prison: i.e., the public expects convicted felons to learn their lesson and become law-
        abiding citizens, while the legal system burdens them with continuing collateral disabilities that make it very
        difficult, if not practically impossible, for them to successfully reintegrate into the free community. To the
        extent that the legal system has itself been complicit in creating this class of ‘internal exiles,’ it is incumbent on
        the legal profession to try to remedy it.
     Report of the Justice Kennedy Commission at 80 (2004), available at
     http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf



                                                                                                                          129
reasonably contemplate any circumstances in which imposing the sanction would not be
justified.”8

         The Standards also address situations in which a conviction is not automatically
disqualifying but rather is considered (or, more properly, the conduct underlying the conviction
is considered) as a basis for disqualification. The Standards on Collateral Sanctions require that
disqualification in such circumstances should be permitted only if “engaging in the conduct
underlying the conviction would provide a substantial basis for disqualification even if the
person had not been convicted.” Standard 19-3.1. The Standards also provide for waiver,
modification or “timely and effective” relief from particular collateral sanctions, by a court or
administrative agency, and for relief from all collateral sanctions, in recognition of an offender’s
record of good conduct since conviction. Standard 19-2.5(a) and (c). Relief from particular
collateral sanctions might be to facilitate reentry, while the more comprehensive form of relief
might recognize a sustained period of good conduct since conviction. Finally, the Standards also
call for a process by which an offender may obtain review of, and relief from, discretionary
disqualifications. Standard 19-3.2.
         Two years ago, the House adopted recommendations of the Justice Kennedy Commission
urging jurisdictions to provide prisoners, from the beginning of their incarceration, with
educational and job training opportunities, and give credit toward satisfaction of sentence for
successful completion of such programs. The Justice Kennedy Commission also recommended
that jurisdictions provide prisoners returning to the community with job placement assistance.
Finally, it urged that jurisdictions limit situations in which a convicted person may be
disqualified from otherwise available benefits and opportunities, including employment, to the
greatest extent consistent with public safety.
        It is time to take the Collateral Sanctions Standards and the Justice Kennedy
Commission’s recommendations a further step, to address in operational fashion the systemic
legal and attitudinal barriers that keep qualified people from getting and keeping a job simply
because of a conviction record. At a meeting in Chicago in March of 2006 with offenders
working with the Safer Foundation, members of the Commission heard moving testimony from
people with marketable skills who had served a term in prison and then struggled, upon their



8
  The courts have frequently invalidated laws that categorically exclude people with a criminal record based on a
rational basis analysis. See Miriam Aukerman, The Somewhat Suspect Class: Toward a Constitutional Framework
for Evaluatinf Occupational Restrictions Affecting People with Criminal Records, 7 Wayne St. J. Law & Soc. 1
(2006) for an extensive analysis of the legal protections available to people rejected for employment based on their
criminal record. Aukerman finds that “in a surprising number of cases related to occupational restrictions, the courts
have used rational basis review to invalidate laws that limit the employment opportunities of people with criminal
records. The pattern that emerges from the cases is that courts are willing to strike down laws which categorically
bar large groups of former offenders from particular occupations, but will generally uphold laws where the
relationship between the offense and the restricted occupation is more carefully tailored.” Id. at 3.




                                                                                                                  130
return to their communities, to find work.9 Other witnesses spoke of the importance of making
job placement a central part of a reentry program. In October, the Commission held a full day’s
hearing in Brooklyn, and heard testimony suggesting that New York’s venerable certificate
program may not work as well as it might, largely because offenders are not made aware of it,
either by their defense counsel, by the courts, or by probation and parole officers who supervise
them in the community. The New York program is also hampered by a certain degree of
confusion about the legal effect of certificates even among those officials responsible for
administering the program. The Commission heard testimony about similar relief programs in
operation in Illinois, Connecticut, and Arizona. Many of the witnesses, particularly those from
the advocacy community, spoke of the substantial obstacles facing people seeking employment
after a stint in prison, obstacles that may take the form of legal barriers and prejudice against
people with a criminal record, but more frequently take the form of lack of job skills and work
experience on the part of the offenders seeking employment. Witnesses spoke of the importance
of having some assistance in overcoming these legal barriers as well as job training programs as
early as sentencing or release from prison.
        The Commission came away from the October hearing convinced that government needs
to make a concerted effort to address the problem of employment barriers, both legal and
attitudinal, and that it needs to bring the private sector into the discussion. This effort must begin
with the legislature, the statute books are filled with collateral sanctions that absolutely prohibit
people with criminal convictions from being considered for certain jobs, no matter how dated the
offense and no matter now heroic their rehabilitation, and without regard to whether the offense
conduct is related in any way to the job or license sought. Three years ago the ABA called upon
legislatures to collect all collateral sanctions in their statute books in a single chapter or section
of the jurisdiction’s criminal code, and to identify with particularity the type, severity and
duration of collateral sanctions applicable to each offense. See Standard 19-2.1. We know of no
legislature that has even begun work on this important task since the Standards were adopted by
the House.10 .
Public Employment Policies Toward People with Criminal Convictions

9
  Joe Cassily, the elected prosecutor from Harford County, Maryland, who testified at our Washington, D.C. hearing,
told of a young man whose dated and minor drug conviction from another jurisdiction was proving an insuperable
obstacle to getting a decent job, and proposed a number of reforms in the legal system to address the need to see that
offenders have a decent chance to prove themselves in the workplace.
10
  Law students in Maryland and Ohio have compiled partial inventories of the collateral consequences applicable in
those states. See Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36_U. Toledo L.
Rev. 611 (2005); see also University of Maryland School of Law Reentry of Ex-Offenders Clinic, A Report on
Collateral Consequences of Criminal Convictions in Maryland (October, 2004). At the time of this writing, a report
from the University of Arizona’s James E. Rogers College of Law was in draft form (Collateral Consequences: A
Comprehensive Study of the Ongoing Effects of Criminal Convictions in Arizona, Preliminary Draft by the Law,
Criminal Justice and Security Program, November 2005). In addition, since adoption of the Collateral Sanctions
Standards in 2003, the National Conference of Commissioners on Uniform State Laws has begun a uniform law
drafting project on collateral Sanctions and disqualification of people with convictions that covers much of the same
area as the ABA Standards. (Indeed, the NCCUSL project was avowedly inspired by the ABA Standards.) In
particular, the current draft contains a provision limiting consideration of conviction in employment, licensing,
housing and education, and allowing disqualification only if the person is judged “unfit.” See § 6 of draft dated
November 27, 2006, discussed at note 28, infra.



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       The executive branches of two major urban centers and one large state have in the past
year announced sweeping changes in public employment policies relating to people with
criminal convictions. These changes, described below, inspired the Commission’s own more
general recommendations. We do not hesitate to admit that we borrowed heavily from these
commendable efforts, particularly the extraordinary Executive Order issued by Florida’s
Governor Jeb Bush in April of 2006, directing all state agencies and licensing boards to review
and revise their policies relating to the employment and licensure of people with criminal
convictions, imposed similar obligations on any employers subject to state regulation (including
contractors, vendors and regulated entities) and encouraged private employers to do likewise.
Also in 2006, Boston and Chicago adopted sweeping new hiring policies applicable to all
municipal agencies in an effort to encourage employment of people with conviction records.
        The Chicago order came in response to recommendations of the Mayoral Policy Caucus
on Prisoner Reentry. Chicago Mayor Richard Daley announced that the City would begin to
“balance the nature and severity of the crime with other factors, such as the passage of time and
evidence of rehabilitation” in their hiring decisions. The City Department of Human Resources
issued guidelines imposing standards on all city agencies regulating hiring decisions related to
people with criminal records, requiring that agencies consider the age of an individual’s criminal
record, the seriousness of the offense, evidence of rehabilitation, and other mitigating factors
before making their hiring decisions. Mayor Daley observed wisely that “we cannot ask private
employers to consider hiring former prisoners unless the City practices what it preaches.”
        In Boston, the City Council passed an ordinance, which was effective July 1, 2006,
prohibiting municipal agencies and their vendors and contractors from conducting a criminal
background check as part of their hiring process until the job applicant is found to be “otherwise
qualified” for the position.11 The ordinance also requires that the final employment decision
considers the age and seriousness of the crime and the “occurrences in the life of the applicant
since the crime(s).” Finally, the ordinance creates appeal rights for those denied employment
based on a criminal record and the right to present information related to “accuracy and
relevancy” of the criminal record. This measure ensures that everyone is given an opportunity to
be considered in the early stages of the employment process without regard to their criminal



11
   A copy of the Boston Ordinance is available at http://www.nelp.org/docUploads/BostonCORIOrdinance%2Epdf.
The press release announcing the Chicago Mayor’s policy is at
http://www.chicagometropolis2020.org/documents/prisonerreentrypressrelease.pdf. See also National Employment
Law Project summary of the two ordinances, as well as San Francisco’s “Ban the Box” initiative, available at
http://www.nelp.org/nwp/second_chance_labor_project/citypolicies.cfm?bSuppressLayout=1&printpage=1. Under
Massachusetts law, both public and private employers are limited in what they may ask of job applicants:
Massachusetts’ general fair employment practices law makes it unlawful for any covered employer to request any
information from an employee or applicant for employment about: (1) an arrest without conviction; (2) a first
conviction for misdemeanors such as simple assault or minor traffic violations; and (3) any conviction of a
misdemeanor that occurred five or more years before the application date. Mass. Gen. Laws ch. 151B, § 4(9) (“any
conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration
resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for
employment or such request for information, unless such person has been convicted of any offense within five years
immediately preceding the date of such application for employment or such request for information”).



                                                                                                                132
record, and encourages employers to consider rehabilitation and other factors that may neutralize
or overcome the negative effect of the criminal record.12
         In Florida, responding to the findings and recommendations of his Ex-Offender Task
Force, Governor Jeb Bush put in place a system of state employment practices “to facilitate the
re-entry of ex-offenders into our communities and reduce the incidence of recidivism.”13
Executive Order 06-89, issued on April 26, 2006, requires each state agency to 1) conduct an
inventory of employment and licensing restrictions and disqualifications based upon a criminal
record for each occupation under the agency’s jurisdiction; 2) determine the impact of such
restrictions and disqualifications and eliminate or modify any such restrictions or
disqualifications that are not tailored to protect the public safety; and 3) describe the exemption,
waiver or review mechanisms available to seek relief from the disqualification or restriction.
The order extends not simply to employment within the agencies, but also to employment in
facilities licensed, regulated, supervised or funded by the state, employment pursuant to contracts
with the state, and employment in which the state licenses or provides certifications to practice.
The order encourages other public entities and private employers, “to the extent they are able, to
take similar actions to review their own employment policies and provide employment
opportunities to individuals with criminal records.”
        Before leaving the area of systemic approaches to the employment of people with
convictions, it is worth describing the promising scheme developed by the federal government
for employment in the transportation industries. A series of laws and policies developed after
9/11 to screen workers in the air, sea and ground transportation industries have produced a
generally flexible regulatory scheme that balances government security interests on the one hand,
with employee rights and reentry considerations on the other. The central features of this scheme
are mandatory (or presumptive) disqualification is applicable only to specified serious felonies;
most mandatory disqualifications lapse after a certain period of time, generally seven to ten
years; within the mandatory disqualification period, state pardons and expungements are given
effect; and waivers may be granted by the employing agency within the period of mandatory
disqualification if no other exception applies. Though serious crimes may still be the basis of
exclusion or termination, the requirements applicable in each of the three industries recognize the
importance of a case-by-case approach to consideration of conviction in employment.14

12
   Just prior to publication of this report, in December 2006, the Mayor of St. Paul, Minnesota, signed an Executive
Order removing the standard question regarding a criminal background from the City’s job application form.
Background checks will still be conducted for many jobs but only after the applicant has been determined to be
“otherwise qualified”. Job applicants with a criminal record will then be given an opportunity to explain what they
have done to deserve a second chance before the City makes a final decision. See
http://www.twincities.com/mld/pioneerpress/16181165.htm. Similar reform efforts are under way in Minneapolis,
and nearby Ramsey and Hennepin Counties.
13
  See Exec. Order No. 06-89, April 25, 2006, available at
http://sun6.dms.state.fl.us/eog_new/eog/orders/2006/April/06-89-exoftf.pdf
14
  The TSA scheme is described in greater detail in National Employment Law Project, A Summary of the New
Federal Security Standards Regulating Transportation Workers, March 8, 2005,
http://www.nelp.org/docUploads/TransportationLaws%2Epdf; See also Margaret Colgate Love, Relief from the
Collateral Consequences of Conviction: Notes from the ‘Laboratories of Democracy, The National HIRE Newsletter
(Spring 2006.) Modeled generally on the approach taken in the federally regulated banking and securities
industries, the TSA scheme distinguishes between serious offenses whose nature would raise a reasonable question


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        The Commission commends these pioneering efforts. It recommends that other
municipal jurisdictions take steps to emulate Chicago and Boston, and that other state governors
consider following the example of Governor Bush. Specifically, the Commission recommends
that jurisdictions develop policy on the employment of persons with a criminal record by
government agencies, and the contractors and vendors who do business with those agencies.
Professional and occupational licensing authorities should develop similar policy for the issuance
of licenses.
        The Commission urges federal, state and local governments to set an example by
amending their hiring policies to require that a conviction should be considered disqualifying
only if the conduct underlying it “substantially relates” to the particular employment or licensure,
or presents a present threat to public safety, consistent with Criminal Justice Standard 19-3.1.
The only exception is for the small category of cases where an absolute statutory prohibition on
employment or licensure of persons with a conviction can be justified under Standard 19-2.2 (see
discussion above), and that prohibition has not been waived or modified, In extending the
requirements of Standard 19-3.1 to private contractors and vendors, this recommendation would
expand existing ABA policy. Jurisdictions should develop criteria for determining when
particular offense conduct “substantially relates” to the employment or license sought.15
       The Commission also urges that state legislatures examine each absolute statutory
disqualification in state law and regulation, to determine whether it can be justified under
Standard 19-2.2 (“the conduct constituting that particular offense provides so substantial a basis
for imposing the sanction that the legislature cannot reasonably contemplate any circumstances
in which imposing the sanction would not be justified”).16 The commentary to Standard 19-2.2

about the individual’s fitness for employment in the particular job, and less serious offenses that should not result in
automatic or presumptive disqualification, but can be considered as part of a general inquiry into an applicant’s
character and fitness. It imposes a temporal limit on the presumptive disqualification, and adds a presumption of
rehabilitation after a certain period of law-abiding behavior, similar to the English Rehabilitation of Offenders Act,
under which a conviction is “spent” after a certain period of time, and may no longer be considered as grounds for
disqualification. It gives effect, within the period of presumptive disqualification, to a state’s determination in a
particular case that a conviction record should not be a black mark on an individual’s record, whether because the
charges were dismissed or set aside at the front end, as a result of deferred adjudication or other diversion program,
or the conviction pardoned or expunged at the back end. Finally, it allows the employing authority to consider
exceptional circumstances even where there has not been a pardon or other external certification of an offender’s
rehabilitation, and to take a chance on an individual where the facts seem to justify.

15
  New York is one of the few states that has enacted a statutory definition of the “direct” or “substantial”
relationship test. See N.Y. Correct. Law § 752 (“the nature of criminal conduct for which the person was convicted
has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily
related to the license or employment sought.”) A number of other states have codified multi-factor tests for
determining when there is a “substantial” or “direct” relationship” between a conviction and a job or license offer).
See, e.g., Conn. Gen. Stat. 46a-80; KY. Rev. Stat. Ann. § 335B.020(2); Minn. Stat. § 364.01; N.D. Cen. Code §
12.1-33-02.1; N.J. Stat. Ann. § 2A:168A-2; N.Y. Correct. Law § 753; Va. Stat. Ann. § 54.1-10H(B)
16
 The commentary to Standard 19-2.2 provides that there is a “heavy burden of justification” on the legislature
where absolute collateral penalties are concerned:
    “There are certain situations in which a collateral sanction will be so clearly appropriate given the nature
    of the offense that case-by-case evaluation at the time of sentencing would be pointless and inefficient. . .
    . It might well be appropriate to provide for automatic suspension of a driver’s license where the offense
    conduct is related to driving or motor vehicles, or to exclude from educational institutions those who sell


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provides that “absolute barriers to employment or licensure are problematic, particularly where
no time limitation is specified and no waiver or relief mechanism is provided.” If an absolute
disqualification cannot be justified, the legislature should either eliminate it, or modify it to
authorize the agency to waive the disqualification on a case-by-case basis. Even where the
legislature can identify a “close connection between the offense and the collateral sanction,”
relief from the sanction should still be available, if warranted. See Standard 19-2.5.17
         In addition to a legislative review of absolute statutory barriers that are not waivable at
the administrative level, the Commission also recommends that each government agency, and
each professional and occupational licensing authority, undertake the sort of systemic review of
discretionary employment barriers contemplated in Governor Bush’s executive order.
Specifically, state agencies should 1) conduct an inventory of employment and licensing
restrictions and disqualifications based upon a criminal record for each occupation under the
agency’s jurisdiction; 2) eliminate or modify, to the extent authorized, any such restrictions or
disqualifications that are either (i) not substantially related to the particular employment or (ii)
not designed to protect the public safety; 3) provide for a case-by-case exemption or waiver
process to give persons with a criminal record an opportunity to make a showing of their fitness
for the employment or license at issue, and provide a statement of reasons in writing if the
opportunity is denied because of the conviction; and 4) provide for judicial or administrative
review of a discretionary decision to deny employment or licensure based upon a person’s
criminal record.18
        These recommendations amplify the requirements of the Collateral Sanctions Standards
relating to discretionary disqualification.19 Indeed, the commentary to Standard 3.3 foreshadows



     drugs there. And, it may be appropriate to revoke a driver’s license or exclude from aid on a case-by-case
     basis, subject to Standard 19-3.1. But it is unreasonable and counterproductive to deny all drug offenders
     access to the means of rehabilitating themselves and supporting their families, thereby imposing a cost
     upon the community with no evident corresponding benefit.
Collateral Sanctions Standard 19-2.2, commentary at 24-25 (footnotes omitted).
17
  Standard 19-2.5(a) provides that “The legislature should provide a should authorize a court, a specified
administrative body, or both, to enter an order waiving, modifying, or granting timely and effective relief from any
collateral sanction imposed by the law of that jurisdiction.” Standard 19-2.5(c) provides that “The legislature should
establish a process by which a convicted person may obtain an order relieving the person of all collateral sanctions
imposed by the law of that jurisdiction.”

18
  Standard 19-3.2 provides that “The legislature should establish a process for obtaining review of, and relief from,
any discretionary disqualification.” The commentary states that

     On review, an individual might seek to argue that engaging in the conduct underlying the conviction is not a
     substantial basis for imposing the penalty; or that individuals who engage in the conduct but are not
     convicted are not subject to the same penalty. The procedures for review and the standard of review should
     be the same as those applied to review of other decisions by the decisionmaker.
19
  See Standard 19-3.1 (prohibits disqualification “grounds related to the conviction, unless engaging in the conduct
underlying the conviction would provide a substantial basis for disqualification even if the person had not been
convicted”); Standard 19-3.2 (“The legislature should establish a process for obtaining review of and relief from,
any discretionary disqualification”) and Standard 19-3.3 (“Each jurisdiction should encourage the employment of
convicted persons by legislative and executive mandate, through financial incentives and otherwise.”)


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many of the Commission’s recommendations directed to state officials.20 Unless there is an
absolute statutory disqualification from employment that satisfies the strict standard of Standard
19-2.2 (“the conduct constituting that particular offense provides so substantial a basis for
imposing the sanction that the legislature cannot reasonably contemplate any circumstances in
which imposing the sanction would not be justified”), agencies must eliminate or modify any
restrictions and disqualifications based solely upon conviction. If the restrictions or
disqualifications are not eliminated, agencies must provide for a case-by-case exemption or
waiver process, if authorized to do so.21
        The Commission stopped short of extending these affirmative obligations to government
contractors, vendors, and private employers that are regulated by the state, as provide in
Governor Bush’s Executive Order. While the Commission does not discourage such extended
efforts by states to regulate private employment, it seems an ambitious beginning just for state
agencies to impose the new requirement on “occupations under their jurisdiction.”22
Relief from Collateral Sanctions and Disqualification from Employment Opportunities

       One of the glaring flaws in the legal system of most states is the absence of an effective
mechanism whereby people who have committed a crime may avoid or mitigate statutory
disqualifications based on conviction, and demonstrate their record of fitness for purposes of
employment and licensing.23 The Commission heard testimony from state officials in over a


20
   The commentary to Standard 19-3.3 recognizes that “private employment opportunities are critical to a successful
program of offender reentry.” Thus Standard 19-3.3 calls upon the legislative and executive branches of
government to create additional employment opportunities for convicted persons in the private sector through
financial and other incentives: “if large numbers of private employers impose broad and absolute bars on hiring
individuals with criminal records, offenders will have limited opportunities for employment. Indeed, it would seem a
reasonable public safety measure for the government to take affirmative steps to help offenders obtain jobs, for there
is a high correlation between steady employment and successful completion of a term of supervision.” The
commentary concedes that “there is a tension between facilitating reentry of convicts and the appearance of
rewarding criminality by giving offenders special benefits that are not available to the law-abiding majority.
21
  As noted, if the restriction or disqualification is absolute and mandated by law, and cannot be justified under
Standard 19-2.2, the legislature should create a waiver or exemption process.) As suggested by the commentary to
Standard 19-3.2, “[o]n review, an individual might seek to argue that engaging in the conduct underlying the
conviction is not a substantial basis for imposing the penalty; or that individuals who engage in the conduct but are
not convicted are not subject to the same penalty.”
22
  The Florida executive order by Governor Bush interprets this phrase to mean “including but not limited to
employment within the agency; employment in facilities licensed, regulated, supervised, or funded by the agency;
employment pursuant to contracts with the agency; and employment in occupations that the agency licenses or
provides certifications to practice.” The Commission did not adopt this expansive definition, and leaves it to each
jurisdiction to decide how far to extend the obligation to inventory, modify or eliminate disqualifications, and
provide for review and a statement of reasons.
23
 . The Justice Kennedy Commission urged that jurisdictions establish an accessible process by which offenders who
have served their sentences may obtain relief from the collateral consequences of conviction, in the form of an
absolute statutory bar to convicted persons, or a discretionary disqualification based on conviction. The Collateral
Sanctions Standards also promote the idea that jurisdictions should have a way for offenders to avoid particular
collateral sanctions, see Standard 19-2.5(a), and also to obtain the kind of “general forgiveness” contemplated by
Section 306.6 of the Model Penal Code. See Standard 19-2.5(c), commentary at 35-36.


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dozen states about the legal mechanisms they have in place to help people overcome the legal
barriers to reentry and reintegration. Some of these states have anti-discrimination laws that
prohibit denial of employment and/or licensing opportunities solely because of a criminal
record.24 For example, New York’s fair employment practices law extends its protections to
people with a criminal record, and prohibits public and private employers and occupational
licensing agencies from discriminating against employees based upon convictions and arrests
that did not result in a conviction, unless disqualification is mandated by law.25 While many
other states have some form of nondiscrimination law, they are generally more limited that New
York’s. Many apply only to professional licensing decisions, and few have any provision for
enforcement, a regrettable omission in the Commission’s view.
        In addition to non-discrimination laws, states have developed a variety of other
mechanisms to “neutralize” the effect of a criminal record for employment purposes after the
prison portion of the sentence has been served, including executive pardon, judicial sealing and
expungement. The Commission heard testimony about each one of these restoration
mechanisms operating in different setting: executive pardon in Arkansas, Connecticut and
Maryland; expungement and sealing laws in Kansas and Oregon; and certificates of relief from
disabilities in New York and Illinois. In most jurisdictions, there seems to be considerable
resistance to the idea of judicial expungement for any but minor offenses, and some general
unease about the idea of relief built upon a fiction that the conviction did not take place,
particularly in light of the ubiquity of information in the internet age.
         Pardon also seems unsuitable as a general relief mechanism, at least in states where the
power is exercised by the governor. Pardon in Maryland and Arkansas is a considerably more
vital relief mechanism than it is in most states, but this is only because of the personal
commitment of the governors who were in office at the time of the Commission’s hearings,
Robert Ehrlich of Maryland and Mike Huckabee of Arkansas. And despite this commitment, the
pardon program in both states operates on a comparatively small scale, constrained by political
considerations to distribute relief on what appears to be almost a symbolic basis. It appears that



24
  See Love, supra note 4, chart No. 6 (Consideration of Criminal Record in Licensing and Employment). See also
Love, Relief from the Collateral Consequences of Conviction: State Laws Limiting Consideration of Conviction in
Employment and Licensure, The National HIRE Network Newsletter, November 2005, available at
http://www.hirenetwork.org/pdfs/HIRE%20Newsletter%20Nov%2005.pdf.
25
   N.Y.S. Human Rights Law, N.Y. Exec. Law § 296(16). Employers may not discriminate against applicants with
criminal records unless: (1) there is a “direct relationship” between one or more of the previous criminal offenses
and the specific license or employment sought, or (2) the issuance of the license or the granting of the employment
would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general
public. The law sets out additional factors to determine whether the “direct relationship” is "sufficiently attenuated"
to warrant the issuance of the license or employment: (1) “the public policy of this state . . . to encourage the
licensure and employment of all persons previously convicted of one or more criminal offenses;” 2) specific duties
                                                                                             s
necessarily related to the employment; (3) the relation of the conviction to the applicant' ability to perform his
responsibilities; (4) amount of elapsed time since conviction; (5) the age of the person at the time of offense; (6) the
seriousness of the offense; (7) any efforts toward rehabilitation; and (8) the interest of the employer of protecting
property, and the safety and welfare of individuals or the general public. New York’s law is incorporated into and
enforced through its more general fair employment practices law.



                                                                                                                     137
only where the pardon power is administered by an appointed board, as it is in Connecticut, is it
capable of functioning in a more regular and useful fashion.
        At its hearing in Brooklyn in October 2006, the Commission heard additional testimony
about the administrative and judicial relief schemes implemented by New York, Illinois,
Arizona, and Connecticut. All four of these states recognize the need to give criminal offenders
a way to avoid specific legal disabilities as early as sentencing, and at some later point to show
that they have paid the full price for their crime and earned the right to return to responsible
membership in society. And all four seek to accomplish an offender’s reintegration into society
not by trying to conceal the fact of conviction, but by advertising evidence of rehabilitation.
The Commission was most impressed by Connecticut’s recently enacted “provisional pardon,”
by which relief from specific “barriers or forfeitures” maybe obtained from the Pardon and
Parole Board as early as sentencing. A person who has been awarded a provisional pardon may
later seek a full pardon, which evidences rehabilitation and “erases” the conviction record.
         The Commission was persuaded by testimony at its three hearings, and particularly by the
witnesses at its Brooklyn hearing, that offenders need to have access to timely and effective
relief from the collateral consequences of conviction, whether those consequences are automatic
and statutory, or discretionary and attitudinal. There is also a clear need to make available
immediate targeted relief in appropriate cases from specific disabilities as early as sentencing
(e.g., to permit an offender placed on probation to keep a job). A full certification of
“rehabilitation,” however denominated, logically could be granted only after a waiting period
following sentencing, when an offender has demonstrated a sustained record of good conduct
         The Commission therefore determined that it should propose a more nuanced two-tiered
process, as contemplated by the ABA Standards on Collateral Sanctions and the Model Penal
Code. 26 First-tier relief from a particular collateral sanction should be available at an early
point (even as early as sentencing for those sentenced to probation, or release from
imprisonment) by order of the sentencing court or an administrative agency such as the paroling
authority, as called for by Collateral Sanctions Standard 19-2.5(a). The relief would be “to
facilitate reentry,” and call for a finding that “such relief would be consistent with the
rehabilitation of the offender and in the public interest.” This finding would be something short
of a full certification of “rehabilitation” or “good conduct”, and its purpose would be to serve as
some reassurance to a prospective employer, public or private. Once the absolute bar had been
removed, the person could be considered for the job, and disqualified only if the conduct
underlying the conviction was "substantially related" to the job or license. The purpose of this
targeted relief would be to give people something to ward off automatic rejection even before
they have completed their sentences and established a track record of law-abiding conduct.27



26
  See Standards on Collateral Sanctions, commentary at 34-36, and note 42. See generally Margaret Colgate Love,
Starting Over With a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URBAN
LAW JOURNAL 101 (2003).
27
  For example, Judge Matthew D’Emic of the Brooklyn mental health court recounted that he had recently given a
limited certificate of relief from disabilities to a defendant under his supervision who had been offered a job as a bus
driver by the City of New York but was otherwise barred from accepting because of his criminal record.



                                                                                                                     138
        It is important to note that the power to grant relief from a particular collateral sanctions
under this provision (as under Standard 19-2.5(a)), would not be limited to employment and
licensing. The Commission believes it is important for a court or administrative agency to be
able to grant relief from disqualifications affecting housing or welfare benefits or drivers licenses
as well as from employment. In addition, relief from collateral penalties imposed by state law
should be available to federal offenders, as well as people with out of state convictions. See
Standard 19-2.5(b).
        More complete relief from all collateral sanctions would be accomplished at a later time,
after a period of law-abiding conduct, and would in effect operate as a sort of judicial or
administrative pardon, in accordance with Collateral Sanction Standard 19-2.5(c). This order
would be predicated upon a finding that “the person has conducted himself in a law-abiding and
productive manner since the conviction,” and it would create a "presumption of fitness" that
would apply even where there is a substantial relationship between the conduct and the
employment. The “presumption of fitness” would apply to all discretionary decision-making by
public employers and licensing boards, and be given teeth through the enforcement provision of
the fourth clause of the third Resolved clause. While it would not apply to private employment,
such an order would be reassuring to private employers as a sign of “official forgiveness.”28
         One obstacle to employment for convicted persons is an employer’s concern about
exposure to charges of negligent hiring. There is a need for employers to feel comfortable hiring
people with convictions, without having to worry constantly that they will be sued in the event
something goes wrong. Judicial or administrative relief orders may serve a useful function in
limiting an employer’s exposure to negligent hiring suits based upon an employee’s conviction
record. Therefore, the Commission recommends that jurisdictions make evidence of an
individual’s conviction inadmissible in any action alleging an employer’s negligence or wrongful
conduct based on hiring, as long as the employer relied on a judicial or administrative order
granting relief from statutory or regulatory barriers to employment or licensure based upon
conviction when hiring.29 In order for such orders to be truly effective in encouraging
employment of convicted persons, the private sector must be educated about them and view them
as a reliable tool for measuring a prospective employee’s likely success on the job.
    Jurisdictions should also work with employers and others who have a legitimate need for
access to criminal record information to encourage its more efficient use, and thus to encourage
employment of persons with criminal records where appropriate. We believe that jurisdictions
should require (to the extent the law permits) all individuals and agencies seeking access to an
individual’s criminal record to rely upon an officially approved system of records. Private
28
  As noted above, the National Conference of Commissioners of Uniform State Laws (NCCUSL) is drafting a
uniform law on Collateral Consequences and Disqualification of Convicted Persons, and NCCUSL in fact was a co-
sponsor of the Brooklyn hearing. Evidently the testimony at that hearing had essentially the same effect on the
NCCUSL drafting committee, since its most recent draft dated November 27, 2006, also proposes a two-stage relief
procedure. At the first stage, a “certificate of relief from disabilities” would be available as early as sentencing,
while the second-stage “certificate of good conduct” would be available after a further waiting period. These
certificates would relieve collateral sanctions as specified, but would not preclude a decisionmaker from considering
the facts underlying the conviction.
29
  In the most recent NCCUSL draft, see note 28 supra, certificates would render the underlying convictions
inadmissible in a negligent hiring lawsuit.



                                                                                                                  139
individuals seeking access to an individual’s criminal record from such a records system should
be required to demonstrate that the public interest in disseminating such information clearly
outweighs the individual’s interest in security and privacy. Certain individuals and entities, such
as employers or agencies that have a statutory obligation to conduct background checks on
applicants for employment or licenses, would be excepted from this obligation. This is the
system employed in Massachusetts for thirty years, and at least in concept it appears to have
worked well there.30

    As important as it is to remove legal barriers to employment and discourage discrimination, it
is even more important to encourage the private sector to employ persons with criminal
records.31 Joan Petersilia reports that “employers are more receptive to the idea of hiring an ex-
felon if a third party intermediary – a counseling program or other service provider in their
community – is available to mentor and to help avert any problems.”32 This approach has been
pioneered by Chicago’s Safer Foundation, which has been working for over thirty-five years to
assist people with criminal records find employment in the private sector.33 Safer recruits and
recommends candidates for particular jobs, and it takes the further step of continuing to sponsor
and mentor the people it places with private employers, essentially acting as a subcontractor.
While Safer has been successful in persuading small to medium companies to participate in their
programs because these companies lack the resources to hire employment agencies to provide
the mentoring and the training services that Safer provides, larger corporations have been harder
30
   Under the Massachusetts Criminal Offender Records Information (CORI) system there are four categories of
access. Law enforcement has unrestricted access to conviction records, including those that have been sealed. A
few non-law enforcement public entities have similar unrestricted access, notably the Department of Social Services
and the Department of Early Education and Care. Certain employers (schools, nursing homes) have similar
unrestricted access, except to sealed records. A third category of access is "discretionary," under which a wide
variety of designated agencies (such as security companies, insurance agencies, ground transportation carriers,
hotels and restaurants) may apply for "special certification" from the Criminal History Systems Board to receive an
          s
offender' record--usually only conviction data and pending cases, which will be granted if the Board determines by
a two-thirds vote that "the public interest in disseminating such information to these parties clearly outweighs the
interest in security and privacy." Mass. Gen. Laws ch. 6 § 172(c). Private individuals (including the press) may
obtain information through a "public access record check" only if the offender is incarcerated, or has been recently
released (one year for misdemeanants, two for felony offenders, three for persons ineligible for parole). A
comprehensive review of the CORI system, published by the Boston Foundation in May of 2005, notes that the use
of CORI for non-law enforcement purposes has increased in recent years, and that the number of persons and
entities excepted from its requirements has been growing. See Boston Foundation, CORI: Balancing Individual
Rights and Public Access, available at http://www.tbf.org/uploadedFiles/CORI%20Report.pdf. Additional
recommendations relating to criminal records are contained in Report 103D.
31
  Standard 19-3.3 provides that “Each jurisdiction should encourage the employment of convicted persons by
legislative and executive mandate, through financial incentives and otherwise.” See note 17, supra, for a discussion
of the commentary to this standard.
32
     Petersilia, supra note 1 at 196.
33
  Safer is now the largest community-based provider of support services for people with criminal records in the
United States. The organization recognizes that individuals leaving prison face a stigma that make finding
employment difficult, yet this population desperately needs jobs if they are going to turn their lives around and
support their families. The Safer Foundation, Letter from the President, available at
http://www.saferfoundation.org/viewpage.asp?id=269. The Commission met twice with officials from the Safer
Foundation, on February 10 and March 30, 2006, and attended a meeting at which formerly incarcerated people
described their positive experiences in Safer’s employment programs.


                                                                                                                    140
to convince. There is a need for colleague-to-colleague dialogue to encourage larger corporate
employers to employ offenders.34 Certificates of relief from disabilities may be helpful in
overcoming employer reluctance to hire people with convictions.

    The Commission urges jurisdictions to work with private employer groups to create decent
job opportunities for people with criminal records, and to develop incentives for private
employers to hire people with criminal records. The structure and function of the Safer
Foundation’s program could be emulated in other jurisdictions, and will be all the more
necessary as governments begin to dismantle the structure of exclusion and discrimination as the
Commission recommends.

                                                     Respectfully submitted,

                                                     Stephen A. Saltzburg, Co-Chair
                                                     James R. Thompson, Co-Chair

February 2007




34
  The Commission is aware that some large private corporations have an official policy against hiring or retaining
anyone with a criminal record. See, e.g., Wright v. Home Depot, 142 P. 3d 265 (HI, 2006)(under Hawaii fair
employment practices law, employer may not terminate employee unless prior convictions bears a “rational
relationship” to his employment). Such blanket exclusionary policies are regrettable. It is hoped that such policies
will be reviewed with the same care that public employers review their exclusionary employment policies, in light of
new concerns about offender reentry, to determine if they are necessary and appropriate.


                                                                                                                141
              AMERICAN BAR ASSOCIATION
          COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                        CRIMINAL JUSTICE SECTION
                NATIONAL DISTRICT ATTORNEYS ASSOCIATION
              NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                     REPORT TO THE HOUSE OF DELEGATES
         [ON ACCESS TO AND USE OF CRIMINAL HISTORY INFORMATION
                  FOR NON-LAW ENFORCEMENT PURPOSES]

                                Recommendation

RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to develop policies governing access to and use of criminal records
for non-law enforcement purposes that would balance the public’s reasonable right to
information against the government’s interest in encouraging successful offender
reentry and reintegration.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to develop systemic reporting systems that will
maximize reliability and accuracy of criminal records. Where records are to be made
available for non-law enforcement purposes, jurisdictions should implement
procedures to:

      (1) present records in comprehensible form to the lay reader; and

      (2) ensure that only law enforcement agencies have access to records of
          closed criminal cases that did not result in a conviction.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to develop and implement procedures to permit an
individual or the government to challenge the accuracy of criminal history record
information in an official system of criminal records. Any record determined to be
inaccurate or incomplete should be promptly corrected, and all determinations should
be reported to the individual and the government in a timely fashion.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to establish standards for and monitor the activities
of private companies that are in the business of conducting criminal background
checks for employment and other purposes, including appropriate controls to ensure
accuracy and reliability of records. Such companies should be restricted to the extent
legally possible from reporting records that have been sealed or expunged. If such
companies are permitted to reveal a sealed or expunged record, they should be
required at the same time to report the fact that the record has been sealed or
expunged and the legal effect of such action.


                                                                                          142
to convince. There is a need for colleague-to-colleague dialogue to encourage larger corporate
employers to employ offenders.34 Certificates of relief from disabilities may be helpful in
overcoming employer reluctance to hire people with convictions.

    The Commission urges jurisdictions to work with private employer groups to create decent
job opportunities for people with criminal records, and to develop incentives for private
employers to hire people with criminal records. The structure and function of the Safer
Foundation’s program could be emulated in other jurisdictions, and will be all the more
necessary as governments begin to dismantle the structure of exclusion and discrimination as the
Commission recommends.

                                                     Respectfully submitted,

                                                     Stephen A. Saltzburg, Co-Chair
                                                     James R. Thompson, Co-Chair

February 2007




34
  The Commission is aware that some large private corporations have an official policy against hiring or retaining
anyone with a criminal record. See, e.g., Wright v. Home Depot, 142 P. 3d 265 (HI, 2006)(under Hawaii fair
employment practices law, employer may not terminate employee unless prior convictions bears a “rational
relationship” to his employment). Such blanket exclusionary policies are regrettable. It is hoped that such policies
will be reviewed with the same care that public employers review their exclusionary employment policies, in light of
new concerns about offender reentry, to determine if they are necessary and appropriate.


                                                                                                                143
Even some courts are taking steps to make their records more generally accessible to the
public.6

        Particularly since 9/11, a heightened concern for internal security has translated
into a spate of new laws requiring records checks upon application for various
professional occupations and employments.7 Numerous federal and state laws bar people
with a criminal record from working in areas with some security nexus, such as
transportation, and with vulnerable populations such as children and the elderly, without
regard to the nature of the conviction, how long ago it occurred, or what the people have
since made of their lives.8 Even if a law does not create an absolute bar to employment
or licensing, people with a record are unlikely to be given an opportunity in a climate that
rewards risk-avoidance.9 Quite apart from the devastating effect on individuals who have

the Pennsylvania State Police implemented its “PATCH system,” a mechanism for ordering a criminal
record over the internet. In the first year that the PATCH system was in operation, the PSP completed
567,209 background checks, up from 412,324 requests processed the previous year. At the PSP’s budget
hearing before the Senate Appropriations Committee in the spring of 2005, its Commissioner
testified that the State Police had performed 1.7 million criminal record checks in the prior year. See
Dietrich, supra note 1 at 3; see also Glenn May, Online Background Checks Booming, Pittsburgh Tribune -
Review (Nov. 30, 2003).
6
 Ms. Dietrich testified that the Administrative Office of Pennsylvania Courts (“AOPC”) is planning to
make criminal record information even more readily available to the public. It has established a website on
which the criminal court docket sheets from the entire state will be made available to anyone with Internet
access. Unlike a PSP record check through the Internet, the AOPC record check is nearly instantaneous
and requires no fee.
       “Advocates have argued that AOPC’s website will greatly increase the barriers already
       encountered by [people with criminal records] in Pennsylvania. The response has been that
       court records have always been publicly available, so why should someone who wants to see
       them be forced to undergo the effort of traveling to the courthouse? The answer is in a
       concept known as “practical obscurity.” The making of records available to the public at the
       courthouse balances public access with some privacy for [convicted persons,]because it
       requires some effort to obtain the information. This balance is upset when information is
       available at the click of a computer mouse.”

Deitrich, supra note 1 at 4.
7
  The commercial vendors reported significant increases in business immediately after 9/11, with
ChoicePoint reporting a 30% increase and HireCheck reporting a 25% increase. See SEARCH, supra note
4 at 32. Employers confirm that criminal record checks have increasingly become what Ms. Dietrich calls
“a staple in their hiring processes.” A member survey conducted by the Society for Human Resource
Management in 2003 revealed that 80% of its organizations conduct criminal background checks, up from
a 51% response rate in a 1996 survey.
8
  Ms. Dietrich reported that in Pennsylvania, 43 different occupations in which some people with
convictions are barred from working have been identified, from accountants through veterinarians. See
Community Legal Services, Inc., Legal Remedies and Limitations on the Employment of Ex-Offenders in
Pennsylvania (Oct. 2004). Law students at the University of Toledo Law School compiled an inventory of
the conviction-related employment disqualifications applicable in Ohio, and came up with well over 200.
See Kimberly R. Mossoney and Cara A. Roecker, Ohio Collateral Sanctions Project, 36_U. TOLEDO L.
REV. 611 (2005).
9
 The press has managed to inflame public sentiment, with sensational headlines trumpeting the shocking
news that a certain employer or industry employs people who have at some point in the past been convicted
of a crime. See e.g., Sherri Ackerman, Felons Can Be Child Care Workers, Tampa Tribune (Dec. 18,


                                                                                                              144
worked hard to put their past behind them, serious problems of inaccuracy and
misidentification are making life miserable for people who in fact have no record at all.

        In most states, a routine background check can also bring up criminal records that
did not result in conviction (including arrest records that resulted in no charges, charges
that were dismissed, acquittals/reversals, and deferred adjudication or probation before
judgment). While some states prohibit employers from taking arrest records into account
in an employment decision, most do not. For a variety of reasons, it is more likely that
the average African-American male will have accumulated an arrest record by the time
he reaches his early twenties. It is therefore all the more imperative that the disqualifying
effect of arrest records by themselves be addressed.

        Taken together, these trends have made it more difficult than ever to overcome
the stigma of a conviction or the associated legal disabilities. Most troublesome for
public safety, they have created an environment in which even the most motivated ex-
offenders cannot provide for themselves and their families, making them likely
candidates for recidivism. Ironically, well-intentioned government efforts to enhance
security may be taking us in the opposite direction.

         To be sure, employers are entitled to know whether the person who is applying
for a job has a criminal record that would cast doubt upon his or her fitness for the
position being applied for, just as they are entitled to know that an existing employee has
been arrested for conduct that would jeopardize the public safety or public trust. To take
the most extreme example, an airline should be entitled to know if an applicant for a
pilot’s job has a record of DUI or drug possession arrests, just as it should be entitled to
know if one of its current pilots has been arrested as the result of a bar fight. A bank or
store should be entitled to know if an applicant for employment has been convicted of
embezzlement or theft, just as a pharmacist should be entitled to know if a prospective
employee has a lengthy record of drug arrests. Crafting a balanced records access policy
that satisfies an employer’s legitimate need to know as well as an employee’s equally
legitimate need to be able at some point to move on with his life -- and the government’s
interest in helping him do so -- is one of the more important challenges of an effective
criminal records policy.

        The resolutions recommended by the Commission urge jurisdictions to establish
records systems that control access to and use of criminal history information for non-law
enforcement purposes, balancing the public’s reasonable right to know against the
government’s compelling interest in encouraging successful offender reentry and
reintegration. States that have open access policies should consider whether systems that
regulate public access, such as the Massachusetts CORI system, would better serve the


2005), available at http://news.tbo.com/news/MGBYVZEVCHE.html. Recent research shows that almost
16 million people in the United States have a felony record. See Christopher Uggen, et al., “Citizenship,
Democracy, and the Civic Reintegration of Criminal Offenders,” Annals, AAPSS, 208 (May 2006). Given
the ever-expanding reach of the criminal justice system, one can imagine that at some point in the not-too-
distant future more people might have a criminal record than not.



                                                                                                              145
several competing social interests.10 Open access systems, like some registries, tend to be
ineffective in enhancing public safety, because they tend to discourage the sort of
offender reintegration that reduces recidivism. The citizenry cannot and should not be
put in the position, as individual employers and landlords and neighbors, of making
public policy through ad hoc individual decisions based solely upon an individual’s
criminal record.11

         The Commission also urges that jurisdictions take steps to maximize the
reliability and accuracy of criminal records. The Commission heard testimony about the
hardship caused by inaccurate and incomplete reporting, by mistaken identity and false
positives based on similar names, and by the growing phenomenon of criminal identity
theft.12 Compounding these record inaccuracies is the difficulty of correcting them.
Jurisdictions should therefore implement procedures to minimize the possibility of false
positives, to allow individuals or the government to challenge the accuracy of criminal
history record information, and to remedy the problem of inaccurate or incomplete
records in a timely manner.13 Finally, we recommend that all dispositions be reported in
a timely fashion, which is particularly important where a disposition is favorable to the
defendant.

10
  See CORI Report, supra note 1. In Massachusetts access to court records is not subject to the same
constraints as the state-wide CORI system, but court records are not centralized nor are they conveniently
available by electronic means. See Globe Newspapers v. Fenton, 819 F. Supp 89 (D. Mass. 1993)(CORI
violated First Amendment to extent it denied public access to court-maintained alphabetical indices of
defendants in closed criminal trials without an individualized judicial determination on an adequate record
                            s
that a particular defendant' name had to be sealed or impounded to serve a compelling state interest).
Under Massachusetts law, records of felony convictions may be “sealed” by the office of probation after 15
years (ten years for misdemeanors), a remedy that has apparently not attracted the same challenge from the
press. See Mass. Gen. Laws ch. 276, § 100A
11
  Elsewhere in our recommendations (see Report No. 103C, supra) we urge jurisdictions to work with
employers and others who have a legitimate need for access to criminal record information to encourage its
more efficient use, and thus to encourage employment of persons with criminal records where appropriate.
Except in cases where there is a statutory requirement that an agency or employer conduct a criminal
background check, non-law enforcement agencies and employers seeking access to an individual’s criminal
record should be required to demonstrate that the public interest in receiving such information clearly
outweighs the individual’s interest in security and privacy.

12
  See Dietrich, supra note 1 at 8-13. Criminal identity theft is a particularly pernicious type of
erroneous criminal record, occurring when a person who is arrested gives the name, date of birth,
and/or social security number of another person. Criminal identity theft is not an uncommon
occurrence. The primary criminal justice report examining this phenomenon estimated that 400,000
Americans were victimized by criminal identity theft in a year’s period. See Report of the
BJS/SEARCH National Focus Group on Identity Theft Victimization and Criminal Record
Repository Operations at 2 (Dec. 2005), available at
http://www.search.org/files/pdf/NatFocusGrpIDTheftVic.pdf.

13
  Ms. Dietrich recommends that, in order to avoid false positives, “date of birth and social security number
should be mandatory search criteria. Never should “matches” be provided for solely a name match.
Moreover, because false positives can be avoided in a fingerprint-based system, the FBI should continue to
avoid providing name-based checks.” See Dietrich, supra note 1 at 16.



                                                                                                               146
      The question of public access to criminal records is a nettlesome one with which the
Commission wrestled. Because unrefined criminal record information can be difficult to
read and misleading to lay readers, it should be presented to members of the public in a
comprehensible and useful form. In addition, the Commission was firmly of the belief
that jurisdictions should take steps to ensure that only law enforcement agencies have
access to records of closed cases that did not result in a conviction, including arrest
records that resulted in no charges, charges that were dismissed, acquittals/reversals, and
deferred adjudication or probation before judgment. In setting up their records systems,
therefore, jurisdictions should automatically limit public inspection of all records of
closed cases that did not result in a conviction, including cases where charges were
dismissed or set aside after successful completion of a period of probation, pursuant to a
deferred adjudication or deferred sentencing scheme.

       Limiting access to records of convictions poses more difficult policy questions. In
its report filed with the House for consideration in August 2006, the Commission
recommended that state records systems limit public access to conviction records after a
period of law-abiding behavior, the length of which might vary depending upon the
seriousness of the offense of conviction. After discussions with the National District
Attorneys Association, in which concerns were raised about public access to conviction
records for certain categories of serious offenses, the Commission decided to consider the
issues further and report back to the House in August, 2007.14

       Finally, the Commission urges jurisdictions to establish standards for and monitor
the activities of private screening companies that are in the business of conducting
criminal background checks for employment and other purposes, and to establish
appropriate controls for accuracy and reliability of records. The Federal Trade
Commission has taken the position that the Fair Credit Reporting Act covers the activities
of private screening companies, which means that an employer seeking information about
an applicant’s criminal record from a screening company must first get the applicant’s
written authorization, then provide the applicant with the copy of any investigative report
generated, and notice of any adverse action taken.15 With stepped-up education of

14
   In its report submitted to the House in August 2006, the Commission noted that “It bears emphasis that,
as a general matter, the Commission does not support categorical disqualification of any class of crimes
from the possibility of sealing relief, whether it comes from a court or from an administrative agency.
Concerns about public safety can be addressed through eligibility waiting periods and public notice, and
careful inquiry into the facts of each case, by the court or an administrative agency.”
15
   Where an employer requests a criminal record report from a commercial vendor for purposes of a hiring
decision it is regarded as a “consumer report” and is thus governed by the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681 et seq. Among the duties that FCRA imposes in such a situation are the
following: 1) The employer must provide a clear written notice to the job applicant that it may obtain a
consumer report. 15 U.S.C. § 1681b(b)(2). 2) The employer must obtain written authorization from the job
applicant to get the report. 15 U.S.C. § 1681b(b)(3). 3) If the employer intends to take adverse action based
on the consumer report, a copy of the report and a Federal Trade Commission Summary of Rights must be
provided to the job applicant before the action is taken. 15 U.S.C. § 1681b(b)(3). This requirement permits
a job applicant to address the report before an employment decision is made. Afterwards, the employer, as
a user of a consumer report, must notify the job applicant that an adverse decision was made as a result of


                                                                                                                147
employers about the requirements of the FCRA, and enforcement of its requirements by
the FTC, individuals should have greater protections from mistake.

          Apart from whatever limits on public access are imposed by the state repository
of records, the Commission notes that in many states courts are given authority, upon an
individual’s petition, to seal (or expunge, set aside, vacate, annul) that individual’s record
of conviction, upon successful completion of sentence, or at some reasonable time
thereafter. Most states provide that such judicial sealing or expungement orders restore
recipients to the legal status he or she enjoyed prior to conviction, and permit them to
deny that they were ever convicted, including when asked to report prior convictions on
an employment application. In a few states the record is destroyed entirely.16 The
Commission takes no position on the desirability of judicial sealing provisions as a
general restoration mechanism, preferring the more transparent relief orders called for in
the Commission’s Report No. 103C.17 However, the Commission does believe that
private screening companies should be restricted to the extent legally possible from
reporting records that have been sealed or expunged, or whose public availability has

the report and must provide, among other things, the name, address and telephone number of the credit
agency and the right to dispute the accuracy or completeness of the report. 15 U.S.C. § 1681m(a).
16
   The Bureau of Justice Statistics reports that 26 states, the District of Columbia, Puerto Rico, and the
Virgin Islands have statutes that provide for the expungement of at least some felony convictions, and that
in 10 of those states, Puerto Rico, and the Virgin Islands, the record is destroyed by the State criminal
history repository. In 12 States and the District of Columbia, the record is retained with the action noted on
the record. See Survey of State Criminal History Information Systems, 2003, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/sschis03.pdf. However, even expunged convictions generally remain
available to courts and law enforcement agencies, and ordinarily revive in the event of a subsequent
offense. See Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A
State-by-State Resource Guide at 39-61 (W.S. Hein, 2006), condensed at
http://www.sentencingproject.org/rights-restoration.cfm.
17
  See Report 103C on Employment and Licensure of Persons with a Criminal Record, supra. Only a
handful of jurisdictions make judicial sealing or expungement generally available for adult felony
convictions (Arizona, Kansas, Massachusetts, Nevada, New Hampshire, Puerto Rico, Utah, Washington).
Most of these states impose an eligibility waiting period that varies depending upon the seriousness of the
offense, and exclude the most serious offenses altogether. For example, Nevada courts have authority to
seal all records related to a conviction, upon the offender’s request, after an eligibility waiting period
ranging from three years for misdemeanors, to 15 years for more serious felonies. Nev. Rev. Stat. §
179.245(1)(a). This relief is unavailable to sex offenders, and also to anyone who has been arrested during
the eligibility waiting period. In New Hampshire, convictions may be “annulled” following completion of
the sentence and expiration of a waiting period ranging from 1 to 10 years. N.H. Rev. Stat. Ann. §§
651:5(III) and (IV). Washington courts are authorized to “vacate” the record of conviction, upon
application, for Class B felonies after 10 years, and for Class C felonies after five. Wash Rev. Code §§
9.94A.640, 9.95.240, 9.96.060 Class A felonies are ineligible for this relief. Oregon’s expungement
remedy applies only to minor (Class C) felonies. Or. Rev. Stat. § 137.225(1) through (12). An additional
number of states offer an expungement or sealing remedy to first offenders and/or non-violent offenders, or
to probationers or misdemeanants, or to those who have received an executive pardon. The purpose of
these statutes is generally rehabilitative, and most of them permit an applicant for employment to deny
having been convicted. See Love, id. at 39-61. Sealing remedies may permit individuals to deny the fact
of their conviction on employment applications, but they generally do not limit access by law enforcement
agencies, or preclude reliance on the conviction in a subsequent prosecution or sentencing.



                                                                                                                 148
been otherwise limited.18 If such companies are permitted to reveal a sealed or expunged
record, they should be required at the same time to report the fact that the record has been
sealed or expunged and the legal effect of such action.



                                                 Respectfully submitted,


                                                 Stephen A. Saltzburg, Co-Chair
                                                 James R. Thompson, Co-Chair

February 2007




18
     See SEARCH report, supra note 4 at 22-26.


                                                                                               149
              AMERICAN BAR ASSOCIATION
          COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                        CRIMINAL JUSTICE SECTION
              NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                  REPORT TO THE HOUSE OF DELEGATES
      [ON REPRESENTATION RELATING TO COLLATERAL CONSEQUENCES]

                                RECOMMENDATION

RESOLVED, That the American Bar Association urges federal, state, territorial and
local governments to assist defense counsel in advising clients of the collateral
consequences of criminal convictions during representation.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial, and local governments to encourage prosecutors to inform themselves of
the collateral consequences that may apply in particular cases.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to authorize and fund public defender services, legal
aid services, and/or other legal service providers, to provide offenders with
appropriate assistance in removing or neutralizing the collateral consequences of a
criminal record.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments to require prison officials to ensure that prisoners are
informed prior to release about the process for removing or neutralizing the collateral
consequences of a criminal record, and to require probation and parole officials
similarly to advise persons under their supervision about this process.




                                                                                             150
                                                    REPORT

        In his 2003 address to the American Bar Association, Justice Anthony M.
Kennedy specifically asked the legal community to re-evaluate its “obsessive focus” on
the process for determining guilt or innocence to the exclusion of considering what
happens to a person once finally convicted and “taken away.” As Justice Kennedy said,
“When the door is locked against the prisoner, we do not think about what is behind it.” 1
Traditionally, the role of both defense attorney and prosecutor ended after sentencing.
The case was closed and the client went away, either to prison or back to the community.
It was not the responsibility of either the defender or the prosecutor to monitor or even be
concerned with what happened to a person after that. Defenders and prosecutors alike
have assumed that social workers and parole supervision agencies will do what is
necessary to ensure that offenders successfully complete their sentences and take the
necessary steps to stay out of further trouble with the law. In short, offender reentry, a
new term for an old concept, was not the business of the bar. Long prison terms and the
increasingly severe effect of collateral consequences are forcing a change in this
traditional way of looking at the responsibility of defenders and prosecutors alike.

        In light of the severity of the collateral sanctions and disqualifications facing
many offenders, and the discouraging effect these legal barriers have on successful
reentry and rehabilitation of offenders, the legal community can no longer turn the blind
eye to them. By providing the offender with the knowledge about collateral
consequences at the front-end of the system, and later with adequate legal assistance to
relieve the disabilities on the back-end, the chances of individuals getting their life back
on track are increased. When offenders are able to successfully return to their
communities and become law abiding citizens, public safety is enhanced and justice is
truly served.

         The ABA Criminal Justice Standards on Pleas of Guilty, and the Standards on
Collateral Sanctions and Discretionary Disqualification of Convicted Persons, both
require that a defendant be advised of collateral consequences before plea and at
sentencing.2 The Collateral Sanctions Standards also provide that jurisdictions, in order
to facilitate this duty of advisement, should collect all collateral sanctions in their statute
books in a single chapter or section of the jurisdiction’s criminal code, and identify with
particularity the type, severity and duration of collateral sanctions applicable to each
offense.3 The recommendations of the Justice Kennedy Commission, adopted by the

1
 An Address by Anthony M. Kennedy Associate Justice, Supreme Court of the United States, American
Bar Association Annual Meeting (August 9, 2003) at 2-3. Available at http://www.abanet.org/cecs.

2
  Standard 14-1.4(c) provides that before accepting a plea, the court should advise the defendant of the
possibility of various collateral sanctions. Standard 14-3.2(f) provides that defense counsel should advise
the defendant of collateral sanctions before the entry of a plea of guilty “to the extent possible.” Standards
19-2.3(a) and 19-2.4(a) both require that the defendant be notified of the collateral sanctions that will result
from the conviction, by the court or defense counsel, before pleading guilty and before sentencing,
respectively.
3
    Standard 19-2.1.


                                                                                                                   151
House of Delegates as ABA policy in 2004, urged bar associations to establish programs
to encourage and train lawyers to assist prisoners in applying for relief from collateral
sanctions. We take the further step of urging states, in the first Resolved Clause, to assist
defense counsel in advising clients of the collateral consequences of criminal convictions
during representation.4

         The Collateral Sanctions Standards already require a court “to ensure, before
accepting a plea of guilty, that the defendant has been informed of collateral sanctions
made applicable to the offense or offenses of conviction.” Standard 19-2.3(a). The
court’s duty may be satisfied by confirming on the record that defense counsel’s duty of
advisement has been discharged. Id. The effect of the resolution is to make advice about
collateral consequences as much of a part of defense practice as is the investigation and
preparation of the client’s case, and to insist that governments make it easier for defense
counsel in carrying out this responsibility. The most helpful form such assistance can
take is to collect and make available specific information about applicable collateral
consequences to all criminal justice practitioners.

        Traditionally, the role of the defender was to minimize the pain the clients suffer,
and the pain was defined as incarceration or financial penalties. Today, the severity of
collateral consequences has changed the parameters of that calculation, and defenders
must reorient their thinking about what minimizing their clients’ pain now means.
Collateral consequences of conviction may pose barriers to employment, housing,
education, and, for non-citizens, their ability to remain in the United States. Before a
defendant pleads guilty and at sentencing, defense counsel should assure that the
defendant understands what a conviction means and be prepared to argue for a sentence
that provides the defendant with as few detrimental collateral consequences as possible.
Defenders must begin to interview every client about their immigration, housing,
employment status, and other relative issues in order to determine if civil disabilities will
apply. If a red flag is raised concerning any of these issues, that client should be referred
to a civil legal attorney or specialist for advice concerning the extent and direction of any
potential collateral consequences. Upon receiving this crucial information, the client will
be in a better position to make an informed and knowing decision about how to proceed
in the case.

       The Commission believes that sentencing courts should ensure that defenders
have carried out their obligation to advise the client about collateral consequences before

4
  In its original recommendation to the House, the Commission urged jurisdictions to assist defenders in
carrying out their “ethical duty” to advise clients about collateral consequences. In further discussions, the
Commission was persuaded that it is neither necessary nor useful to categorically identify defense
counsel’s obligation to advise of collateral consequences as an “ethical” one. In some cases, depending
upon the nature and severity of the collateral sanction in relation to the pending criminal charges, a
defender’s failure to advise might amount to professional incompetence. A noncitizen client’s exposure to
almost certain deportation in the event of a felony conviction is the paradigmatic case in which failure to
advise of collateral sanctions would raise competency questions. In many other cases, however, failure to
advise of each and every collateral penalty would not raise any such questions, particularly where
information about those collateral penalties was not readily available.



                                                                                                                 152
accepting a plea and at sentencing. One of the core concerns underlying this obligation is
that people who plead guilty should know and understand the consequences of their
guilty plea. Under the current system, courts shoulder virtually no responsibility for
ensuring that defendants are adequately aware of the consequences, outside of the
criminal justice system, that they may face after conviction.5 There still remains a
tremendous need for courts and legislatures to address the collateral consequences
problem, and we urge jurisdictions to move in this direction.

        Relatedly, in the second resolved clause, prosecutors are asked to inform
themselves about the collateral consequences that may apply in particular cases. The
goal is ensure that prosecutors are knowledgeable regarding the consenquences of their
charging decisions and sentencing recommendations, beyond the amount of time a person
may be incarcerated or placed on probation and the amount of a fine. All participants in
the criminal justice system should understand that the collateral consequences of
conviction may impose as great a burden or detriment upon a convicted offender as the
sentence itself. It is important for prosecutors to exercise their discretion with an eye to
the overall impact of a charging decision or sentencing recommendation upon a particular
individual.

        Robert M.A. Johnson -- District Attorney of Anoka County, Minnesota and Chair-
Elect of the ABA Criminal Justice Section, and a Liaison Member of the Commission --
has stated that in seeking justice, prosecutors must consider the circumstances of the
offense, the offender, and the consequences of the conviction. Mr. Johnson, a former
president of the National District Attorneys Association, stated in his 2001 NDAA
President’s message that:

         At times, the collateral consequences of a conviction are so severe that we are
         unable to deliver a proportionate penalty in the criminal justice system without
         disproportionate collateral consequences. There must be some reasonable relief
         mechanism. It is not so much the existence of the consequences, but the lack of
         the ability of prosecutors and judges to control the whole range of restrictions and
         punishment imposed on an offender that is the problem. As a prosecutor, you
         must comprehend this full range of consequences that flow from a crucial




5
  Courts have held that while a judge taking a guilty plea must advise of the “direct” consequences
(e.g., imprisonment and fine), defendants need not be told by the court or their counsel about collateral
sanctions. See, e.g., Foo v. State, 102 P.3d 346, 357-58 (Hawaii 2004); People v. Becker, 800
N.Y.S.2d 499, 502-03 (Crim. Ct. 2005); Page v. State, 615 S.E.2d 740, 742-43 (S.C. 2005). For a
discussion of this principle, see Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel
and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697 (2002). Even in the absence of
constitutional requirement, however, a majority of the states provide for disclosure of some collateral
sanctions. For example, at least two dozen jurisdictions by court rule or statute require the court to
advise defendants of potential immigration consequences before accepting a guilty plea. For complete
statutory citations, see National Conference of Commissioners on Uniform State Laws, Uniform Law
on Collateral Sanctions and Disqualifications, Draft dated November 27, 2006, at notes 87-91.



                                                                                                            153
         conviction. If not, we will suffer the disrespect and lose the confidence of the very
         society we seek to protect.6

    It is encouraging that the National Association of District Attorneys has begun to
address the issues involved in offender reentry, with an eye toward engaging more in the
process.7 The responsibility of a prosecutor differs from that of the usual advocate,
because the prosecutor is charged with seeking justice and not merely winning
convictions. Accordingly, prosecutors should consider the important implications of
collateral consequences if they are to ensure that justice is achieved.

       In the third resolved clause, the American Bar Association urges legislatures to
authorize and fund public defender services, legal aid services, and/or other legal service
providers, to provide offenders with assistance in mitigating or neutralizing the collateral
consequences of a criminal record. As the discussion below indicates, the issue of who
should provide services to offenders seeking to remove or ameliorate collateral sanctions
is a controversial one in the defense community.

         There is on-going debate within the defense community about whether the role of
the defender should be expanded to include reentry services. During the Commission’s
hearings, that debate was fully aired. Peter Ozanne, Executive Director of the Oregon
Office of the State Public Defender, testified that public defenders should concentrate on
becoming great lawyers in the court room and undertake no role in community
corrections or reentry. Edwin Burnett, Public Defender in Cook County, Illinois, stated
in his testimony that treatment and re-entry are not on the defense counsel priority list,
and that defender offices are not set up to handle clients after their cases are adjudicated.
He further stated that the natural focus is on the courtroom, because the defense bar is
measured by effective representation and not social referrals. The views of Mssrs.
Ozanne and Burnett reflect the concern of many within the defense bar who argue that if
a public defender office elevates social work and community-outreach practice
institutionally, it risks professional imbalance with its lawyers losing focus on their core
role of plea negotiation and trial litigation.

         The opposite viewpoint was expressed by three other senior public defenders who
testified. Paul DeWolfe, Montgomery County (MD) Public Defender, participates in the
Montgomery County Jail’s Pre-Release Center, working with social workers and

6
  Robert M.A. Johnson, Message from the President: Collateral Consequences, The Prosecutor, May-June
2001, available at http://www.ndaa-apri.org/ndaa/about/president_message_may_june_2001.html.
7
  In July 2005, the National District Attorneys Association adopted “Policy Positions on Prisoner Reentry
Issues,” available at http://www.ndaa-apri.org/pdf/policy_position_prisoner_reentry_july_17_05.pdf. This
document affirms prosecutors’ interest in offender reentry as a public safety issue, stating that “America’s
prosecutors should, where practicable, be participants in addressing th[e] issue [of offender reentry] in an
effort to reduce recidivism and ensure the safety of victims and the community.” It recommends that
“prosecutors should educate themselves regarding the reentry programs that are provided or being proposed
in their local jails and state prisons in addition to those reintegration plans that are being supervised by
probation, parole, or their local community services board and be supportive of appropriate programs and
plans.”


                                                                                                               154
probation officers in a multi-disciplinary team approach to reentry. He even has an office
inside the jail itself. He has organized a program whereby private law firms working
under his supervision provide pro bono legal services to the offenders returning to the
community through the Pre-Release Center.8 Jim Neuhard, Director of Michigan’s State
Appellate Defender Office, agreed that defenders should form partnerships with other
service organizations to provide re-entry legal services. He believes that the traditional
public defense system model does not sufficiently consider the long-range outcomes for
the client, and that defenders should concern themselves with the civil consequences of
criminal convictions during legal representation. Indeed, he urged that it should be an
ethical responsibility for the defense bar to understand the collateral consequences facing
their clients. Didi Sallings, Executive Director of the Arkansas Public Defender
Commission, told the Commission that her office has already expanded the defender’s
role outside of the courtroom to provide clients with assistance in expunging criminal
records. She stated that there is a tremendous need for public defenders to provide post-
adjudication services to assist their clients in getting their lives back on track. These
three represent the view that defenders must take a broader approach to their
responsibilities to clients if they want to avoid having those clients come back into the
system again and again.

        The Commission believes that public defenders and the criminal defense bar
generally must re-evaluate traditional philosophies and practices relating to the scope of
legal representation. Over the past two decades, many public defender offices across the
country have broadened the range of defense services provided to indigent clients to
include what is now commonly referred to as “holistic representation” or “whole client
representation.” These concepts are born out of the concept of therapeutic
jurisprudence,9 which stems from the legal academy, and the problem-solving lawyering
concept,10 which stems from practitioners. The holistic model recasts the defense role by
considering the social, psychological and socioeconomic factors that drive criminal
behavior. Robin Steinberg of the Bronx Defenders has stated that “working



8
  The Jail’s reentry program, organized by Montgomery County Corrections Chief Art Wallenstein and Jail
Administrator Rob Green, is six to nine months in duration, and during this period participants are allowed
to work during the day and receive counseling and other supportive services at night. They are permitted to
save all their earnings from work in order to help them obtain housing and other services upon release.
9
  Therapeutic jurisprudence is the "study of the role of the law as a therapeutic agent." It focuses on the
    s
law' impact on emotional life and on psychological well-being. Therapeutic jurisprudence focuses
attention on humanizing the law and concerning itself with the human, emotional, psychological side of law
and the legal process. See David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L.
Rev. 125, 125 (2000).
10
  Problem solving lawyering provides integrated services to clients; promotes collaboration between civil
legal aid and public defense practitioners to help clients and communities; relies on other professionals
such as social workers, mental health experts and mitigation specialists to address the accused person’s
underlying problems. See, e.g., Cait Clarke and James Neuhard, Making the Case: Therapeutic
Jurisprudence and Problem Solving Practices Positively Impact Clients, Justice Systems and Communities
They Serve, by 17 St. Thomas L. Rev. 781, 781 fn 3 (2005).



                                                                                                              155
compassionately with indigent clients means seeing firsthand that the problems and
challenges they face stretch farther than the confines of the criminal cases before them.”11

         In a traditional public defender office, the goal is to remove the immediate threat
of legal jeopardy, not address larger issues. The traditional approach does not allow the
defender to delve deeper to address the issues that contributed to the client’s involvement
with the criminal justice system. The holistic representation model does not change the
fundamental and compelling value of getting an acquittal, less jail time, or avoiding
prison altogether for a client. It merely adds the goal of making a long-term difference in
the life of the client. By providing civil legal services to address offender’s civil
disabilities, defender offices are encouraged to see beyond the courtroom disposition of
their criminal cases and address the underlying social issues hindering their client’s
successful reintegration into the community.

         Several public defender organizations have already begun providing reentry-
related services or are soon to begin. Some of these services include representation in
employment-related proceedings, deportation-related proceedings, and housing-related
proceedings, as well as assistance with expunging criminal records. In addition to the
Maryland and Arkansas programs described above, the Bronx Defenders, a community
defender organization has instituted a Civil Action Project that provides comprehensive
legal services to clients and their families by fully integrating civil representation with
their criminal defense practice. 12 Its goal is to develop proactive approaches to minimize
the severe and often unforeseen consequences from criminal proceedings and facilitate
the reentry of clients into the community. The Bronx Defenders is also dedicated to
addressing the underlying issues that led to their client’s involvement with the criminal
justice system in the first place.

        The Neighborhood Defender Services (“NDS”) of Harlem, also has a team of
attorneys to represent its clients in the civil matters that arise from their criminal cases.13
NDS realizes that the potential consequences of those civil matters are often more severe
than the disposition of the criminal case. The NDS civil team represents clients in a
broad range of civil matters, principally police brutality and misconduct, housing matters
and family court child protective proceedings. Similarly, the Public Defender Service of
the District of Columbia has a civil legal services unit that will shortly begin to handle a
wide range of cases involving the collateral consequences of a criminal arrest, conviction
or an extended period of incarceration, such as civil forfeiture, eviction, denial of public
benefits, termination of parental rights, deportation and academic expulsion.14

11
  Robin G. Steinberg, Beyond Lawyering: How holistic representation makes for good policy, better
lawyers and more satisfied clients, at 2, available at
http://www.pili.org/2005r/dmdocuments/IV.Panel%20Robin%20HolisticRepres.pdf
12
     http://www.bronxdefenders.org/comm/006.html
13
     http://www.ndsny.org/programs.htm#civdefense
14
     http://www.pdsdc.org/Civil/index.asp



                                                                                                    156
        It helps defenders take the broader approach to helping their clients if the legal
system is flexible enough to ensure a good outcome for the client and the prosecutor is
willing to buy into a utilitarian approach. For example, if the law provides for deferred
adjudication and eventual expungement of the record upon successful completion of
probation, as it does in Arkansas and Connecticut and many other states, a defender is
naturally more willing to encourage the client with a substance abuse problem to plead
guilty and participate in a community-based therapeutic treatment program. If it does
not, and the client is going to end up with a record anyway, it makes an onerous treatment
regime seem comparatively unappealing.

        If a conviction occurs and collateral consequences are imposed, offenders need
legal assistance in seeking restoration of their rights and privileges. In urging
authorization and funding of public defender services, legal aid services, and/or other
legal service providers, to provide offenders with assistance, the Commission calls on
governments to provide new funds for this purpose, not to shifts funds so that for every
extra social worker or civil attorney the public defender office hires, there will be one less
attorney that the office can employ in criminal representation. The Commission
recognizes that the overwhelming caseload and diminishing resources currently available
to support the fundamentals of criminal defense representation make this
recommendation unattainable for most public defense practitioners without additional
funding. Problem solving approaches demand more resources if they are to be practiced
effectively, and most defenders barely have the time or resources to perform the basic
responsibilities of client representation.

        Assistance in overcoming collateral consequences may also come from other
sources, namely prosecutors and correctional officials. District Attorney Michael D.
Schrunk of Multnomah County, Oregon, testified that his office had recently sponsored a
program called “Project Clean Slate,” to provide county residents with an opportunity to
apply for expungement, handle outstanding warrants, clear unpaid fines, and clear
driver’s license suspensions, and received an overwhelming response.15 On the
scheduled day of the program local law enforcement officials and attorneys met with 800
people to attempt to resolve various outstanding problems related to their criminal
records and court orders; an additional 1700 individuals who registered for the program
were assisted over the course of nine weeks following the event. In Multnomah County,
expungement requests are brought to the court by the DA’s office, and the court generally
grants any request upon the prosecutor’s recommendation. Mr. Schrunk testified that he
regards expungement as a critical service for former offenders, since a conviction record
can hinder them in getting jobs and housing.16


15
  March 31 Commission Hearing Notes, available at http://www.abanet.org/cecs. In addition, information
on Project Clean Slate is available under “Hearing Materials” on this website.
16
   Under Or. Rev. Stat. § 137.225(1) through (12), the sentencing court is authorized to “set aside”
misdemeanors and minor felonies (Class C, except sex and traffic offenses, and some other minor crimes).
Upon application and a determination of eligibility, an order must issue unless the court makes written
findings by clear and convincing evidence that granting the motion would not be in the best interests of
justice. § 137.225(11). “Upon entry of such an order, such conviction, arrest or other proceeding shall be


                                                                                                             157
         David Guntharpe of the Arkansas Department of Community Corrections testified
that his legal staff had recently discovered a little-known Arkansas statute that allows
probationers who have successfully completed all of the terms of their probation to
petition the court to dismiss the charges against them and expunge the record.17
Understanding that many of the people supervised by his agency do not have the means
to hire a lawyer and go to court, Mr. Guntharpe directed his staff to prepare a model
petition form to give to each probationer as he or she “graduates,” so that they can easily
file the form with the court and obtain expungement.

        Law school clinics can serve as a critical link in providing legal services to people
seeking relief from the collateral consequences of conviction. Law schools today are
generally doing little to prepare future lawyers to deal with the legal, social, and
administrative problems arising from criminal convictions in this country. Training
lawyers to become social engineers18 who are highly skilled, perceptive, sensitive
lawyers who understand the importance of solving “problems of local communities” and
“bettering conditions of the underprivileged citizens” is generally not emphasized in
traditional legal education, where the focus tends to be on the workings of the adversary
system.19 Clinical legal education has been and remains available as a tool to sensitize
future attorneys to the social, economic, and political forces that affect their lives of their


deemed not to have occurred, and the applicant may answer accordingly any questions relating to their
occurrence.” Or. Rev. Stat. § 137.225(4).
17
   Under Ark. Code Ann. § 5-4-311(a) and (b), probationers for whom a judgment of conviction was not
entered, including those who went to trial, are entitled to apply to the sentencing court upon completion of
supervision for an order dismissing the charges, and “expunging” the record. According to the Arkansas
Department of Community Correction, a judgment of conviction is not entered in any case where a prison
term or fine is not imposed, so that the relief afforded by this statute is potentially available to all persons
sentenced to probation only. A person whose record is expunged “shall have all privileges and rights
restored, shall be completely exonerated, and the record which has been expunged shall not affect any of
his civil rights or liberties, unless otherwise specifically provided for by law.” § 16-90-902(a). "Expunge"
is defined to mean that the record “shall be sealed, sequestered, and treated as confidential in accordance
with the procedures established by this subchapter,” but “shall not mean the physical destruction of any
records.” Ark. Code. Ann. § 16-90-901(a). Upon the entry of the order to seal, the underlying conduct
“shall be deemed as a matter of law never to have occurred, and the individual may state that no such
conduct ever occurred and that no such records exist,” including in response to questions. § 16-90-902(b).
Records may be disclosed if the person applies for employment with a criminal justice agency or is
subsequently prosecuted for a new crime. § 16-90-903(a)(2)-(4). A conviction that has been expunged may
not be used as a predicate offense. See State v. Ross, 39 S.W. 3d 789 (Ark. 2001).
18
   The concept of the lawyer as social engineer was originated by Charles Hamilton Houston, civil rights
attorney and former Dean of Howard Law School, who conceived of and developed the legal strategy that
resulted in the end of legalized racial segregation in the United States. He taught and mentored Thurgood
Marshall and others who argued and won the 1954 U.S. Supreme Court decision in Brown v. Board of
Education. See Genna Rae McNeil, Groundwork: Charles Hamilton Houston and The Struggle for Civil
                                                                                                  s
Rights. Philadelphia, University of Pennsylvania Press, (1983) at 84. Charles Hamilton Houston' credo
                                                s                               s
guides the Howard University School of Law' mission to this day: "A lawyer' either a social engineer or
   s
he' a parasite on society."
19
     Id.



                                                                                                                   158
clients and strengthen their concern for social justice. An understanding of these critical
issues will arm the next generation of attorneys with problem-solving techniques that can
be used to improve the overall efficacy of the criminal justice system.

         The Justice Kennedy Commission urged law schools to establish reentry clinics to
assist individuals returning from prison or with criminal convictions regain legal rights
and privileges. Two universities, New York University (“NYU”) and University of
Maryland, have already established reentry clinics. NYU launched the first-ever
Offender Reentry Clinic in 2002, and the clinic’s goal was to provide direct
representation for ex-offenders and also to expose students in the clinic to a wide range of
policy and administrative issues involved in reentry.20 The objectives of the clinic were
twofold. First, the course sought to familiarize students with the range of legal,
administrative, and social restrictions imposed on individuals with criminal records as
well as their families and communities. Second, the course was designed to examine the
role that lawyers might play in helping ex-offenders navigate the legal obstacles they face
upon return from prison. To date, the students have covered a range of substantive legal
issues, including felon disenfranchisement and laws governing occupational bars and
licensing restrictions. Because students represent actual clients, the course also offers
training in litigation to help the students develop theories and hone formal advocacy
skills.

        The University of Maryland Law School also offers a Re-Entry of Ex-Offenders
Clinical Program. The students’ work include individual representation on issues related
to expungement of criminal records, partnering with the social work clinic to assist
individuals on the verge of release from correctional facilities, and community
presentations.21 Students also work with community organizations providing assistance
to ex-offenders, attend legislative hearings, and meet with correctional and law
enforcement agencies to advocate on behalf of offenders. The clinic offers an ambitious
and exciting opportunity for students to engage in a critical examination of important and
complex criminal justice issues.

        In its final resolved clause, the Commission urges governments to require prison
officials to ensure that prisoners are informed prior to release about the process for for
removing or neutralizing the collateral consequences of a criminal record, and to require
probation and parole officials similarly to advise persons under their supervision about
this process. Many offenders are not informed of the available remedies, and these
agencies have the unique opportunity to reach offenders in order to provide this important
information. The efforts of the Arkansas Department of Community Correction
described above could be a model for other supervision agencies. Legislatures are also
beginning to recognize this need.22
20
     http://www.law.nyu.edu/clinics/semester/offender/index.html
21
     http://www.law.umaryland.edu/course_info.asp?coursenum=598D
22
  The Florida legislature recently passed a bill requiring county and local jails to assist inmates in applying
for restoration of their civil rights by providing them upon release with the necessary forms. See Debbie
Cenziper and Gary Fineout, Ex-Felons get help regaining civil rights, Miami Herald, May 2, 2006. Florida


                                                                                                                  159
                                                         Respectfully submitted,


                                                         Stephen A. Saltzburg, Co-Chair
                                                         James R. Thompson, Co-Chair

February 2007




law has for some years required the Department of Corrections to assist inmates released from state prison
or supervision with this process, and to forward their names upon release to the Clemency Board for
consideration for restoration of rights, though recent litigation suggests that these obligations have been
honored in the breach.


                                                                                                              160
                  AMERICAN BAR ASSOCIATION
              COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS
                            CRIMINAL JUSTICE SECTION
                    NATIONAL DISTRICT ATTORNEYS ASSOCIATION
                  NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

                        REPORT TO THE HOUSE OF DELEGATES
                    [ON TRAINING IN THE EXERCISE OF DISCRETION]

                                   RECOMMENDATION


RESOLVED, That the American Bar Association urges federal, state, territorial and local
governments, and licensing authorities to fund professional associations and
organizations to develop programs to train all criminal justice professionals -- including
judges, prosecutors, defense counsel, probation and parole officers, and correctional
officials -- in understanding, adopting and utilizing factors that promote the sound
exercise of their discretion.

FURTHER RESOLVED, That the American Bar Association urges federal, state,
territorial and local governments and licensing authorities to recognize that such training
should be credited towards continuing education program requirements.




                                                                                              161
                                                    REPORT

        The criminal justice system in the United States is uniquely decentralized.
Approximately ninety-five percent of criminal cases are prosecuted at the local level, and about
2500 jurisdictions have elected chief prosecutors.1 Within a particular county or judicial district,
a variety of line prosecutors and law enforcement agents exercise discretion independently of
one another. Probation and parole officers operate with broad discretion at the field level,
sometimes reporting to state correctional agencies or courts, and sometimes reporting to the
county. Judges, corrections officials, and parole board members also make independent
discretionary decisions.

        The discretionary decisions these officials make independently on a daily basis have one
thing in common: they have a profound influence on the lives of criminal defendants, on their
families, and on the community. Ultimately, the decisions could affect whether a defendant will
be able to return to society and remain law-abiding at the conclusion of a court-imposed
sentence, whether the victim will be able to overcome the impact of the crime, and whether the
community will accept that justice has been accomplished. However, despite the impact these
decisions can have, the assumptions underlying them are rarely articulated or examined.
Officials in different jurisdictions rarely compare notes on the use of discretion, and the exercise
of discretion is even more rarely made the subject of systematic training or regulation.

        The Commission was persuaded by Robert Johnson, the elected prosecutor from Anoka
County, MN, and a liaison to the Commission from the Criminal Justice Section, that it is
important to identify the significant amount of discretion that exists throughout the criminal
justice system, to highlight the importance of exercising that discretion wisely, and to
recommend that criminal justice professionals and their associations and organizations develop
training programs that will assist them in understanding, adopting and utilizing factors that
promote the sound exercise of discretion.

        The resolution urges training for all criminal justice professionals who exercise
discretion. These include judges, prosecutors, defense counsel, probation and parole officers,
and correctional officials. It emphasizes that for helpful training to occur three ingredients are
essential. Most important is funding -- i.e., new funds are needed for training that does not now
occur. Funding alone is not sufficient, however. Jurisdictions must assure that the work
schedules of those to be trained accommodate new training programs, and that the new training
programs should be credited toward any continuing education requirements imposed upon
criminal justice professionals.




1
   In Alaska, Rhode Island, and Delaware, the elected attorney general is the chief prosecutor. In Connecticut and
New Jersey, as in the federal system, the chief prosecutor is appointed by the Governor. U.S. Department of Justice,
Office of Justice Programs, Bureau of Justice Statistics Bulletin, National Survey of Prosecutors in State Courts,
2001, May 2002, available at http://www.ojp.usdoj.gov/bjs/pub/ascii/psc01.txt. There is no qualification (other than
a license to practice law) for the office of district attorney.



                                                                                                                 162
Judges

       The American Bar Association has consistently worked to shore up the discretionary role
of judges in criminal sentencing. The ABA Sentencing Standards (3d ed.) opt for some form of
guidelines to avoid unwarranted disparities in sentencing while assuring that a sentencing judge
may consider the unique characteristics of each offender and the circumstances in which an
offense was committed. The standards assume that judges will exercise their discretion
appropriately, but the fact is that in many jurisdictions judges, whether elected or appointed,
receive little training in the range of options available to them and in the factors that might
warrant consideration when these options are considered. Judicial conferences are common
throughout the United States, and CLE for judges serves the important function of keeping
judges current on legal developments. Training in the appropriate exercise of discretion should
be an important part of judicial training. It is also important to keep judges aware of sentencing
options, including rehabilitative programs that may be available within their jurisdiction.
Accurate and complete information will help to ensure that a judge is able to develop the most
appropriate sentence in each case.

        Sentencing guidelines systems have been adopted in the federal system and some states.
One principal goal is avoidance of unwarranted disparities in sentencing. Guidelines may work
to avoid such disparities, but training in the exercise of discretion holds out some promise of also
helping to reduce unwarranted disparities.

Prosecutors

        Prosecutors act as gatekeepers. No person may be convicted of a crime unless a
prosecutor brings and pursues a charge against him.2 Prosecutors have traditionally controlled
programs that divert offenders out of the criminal justice system and into social service
treatment, and programs that work to defer adjudication and sentencing. In recognition of their
responsibility for public safety, prosecutors have more recently become involved in crime
prevention strategies.3 Prosecutor-driven prevention programs may deal with issues ranging
from community prosecution, mental health, child protection, and juvenile justice, to violence
against women, gun violence, and white collar crime.

       Since successful reentry and reintegration of offenders means less crime and fewer
victims, prosecutors have also taken an interest in reentry programs and the collateral


2
 ABA Standards for Criminal Justice Prosecution Function and Defense Function (3rd Ed.), Standard 3-2.1
(Prosecution Authority to be Vested in a Public Official), Standard 3-3.4 (Decision to Charge); NDAA National
Prosecution Standards ( 2nd Ed.), § 43.1 (Charges, Prosecutorial Discretion), § 44.1 (Diversion, Prosecutorial
Discretion).
3
  Some of the innovative prevention programs initiated and administered by prosecutors are encouraged and funded
by the United States Department of Justice, and some are developed and funded locally. The American Prosecutors
Research Institute (APRI), founded by the National District Attorneys Association in 1984, tracks the development
of these programs nationally, to ensure that state and local prosecutors have access to the most up-to-date and
relevant research. See the APRI’s Major Program Areas at http://www.ndaa-apri.org/apri/programs/index.html.



                                                                                                                 163
consequences of conviction.4 But this is a new role for prosecutors, and it may mean new
responsibilities for defense counsel who must learn how to talk with prosecutors about new
prosecutorial alternatives. The fact is that as new programs develop, both prosecutors and
defense counsel need to understand the factors that may result in an offender receiving the
benefit of a sentence alternative to incarceration.

       In jurisdictions that have adopted determinate sentencing with guidelines and mandatory
minimums, prosecutors have effective control over some sentences by virtue of the charges they
bring. The charging decisions in these jurisdictions may be especially important, both
prosecutors and defense counsel need to understand the factors that are likely to be considered as
charging decisions are made.

         During the course of its hearings, the Commission heard from a number of prosecutors
who have developed innovative community-based sanctioning programs, including community
courts in Oregon, therapeutic community-based treatment centers in Arkansas, and extended in-
patient drug treatment in New York.5 Many of the prosecutors who participated in the hearings
have been leaders in the development of partnerships with defenders and courts and other justice
stakeholders, partnerships that have yielded impressive reductions in the number of people
returning to prison, or going there in the first place. Robert Johnson, himself a long-time leader
in his own district and in the larger community of prosecutors, expressed concern that there is no
forum in which prosecutors can share their experiences and learn about the variety of innovative
crime prevention approaches being developed around the country – often under the auspices of
the local prosecutor’s office.

         Mr. Johnson pointed out that prosecutors themselves tend to set funding priorities for
training in order to carry out their responsibilities to the public. Thus, they have developed
training in the mechanics of prosecution -- such as search and seizure, confessions, lineups,
DNA, cybercrime, and other trial-related aspects of their work -- because they believe that trial
tactics training improves their ability to win cases. But, he emphasized that the public does not
ask prosecutors simply to win cases. It asks prosecutors to reduce crime and victimization,
which requires development of a broader and more nuanced crime control strategy. Mr. Johnson
urged that training in the exercise of discretion - arguably the most important aspect of a
             s
prosecutor' responsibility – might improve prosecutorial effectiveness because the exercise of
discretion is at the core of an overall strategy to reduce crime.



4
  In July 2005, the National District Attorneys Association adopted “Policy Positions on Prisoner Reentry Issues,”
available at http://www.ndaa-apri.org/pdf/policy_position_prisoner_reentry_july_17_05.pdf. This document
affirms prosecutors’ interest in offender reentry as a public safety issue, and recommends that “prosecutors should
educate themselves regarding the reentry programs that are provided or being proposed in their local jails and state
prisons in addition to those reintegration plans that are being supervised by probation, parole, or their local
community services board and be supportive of appropriate programs and plans.” It states that “America’s
prosecutors should, where practicable, be participants in addressing th[e] issue [of offender reentry] in an effort to
reduce recidivism and ensure the safety of victims and the community.”

5
 Many of these prosecutor-driven programs are described in other sections of the Commission’s report. See
particularly Report I on Alternatives to Incarceration and Conviction for Less Serious Offenders.


                                                                                                                    164
        Training may encourage prosecutors to experiment with programs that divert an offender
into an alternative sanctioning system that may benefit both the victim and society. Training
programs can enable prosecutors who have such programs to share information about successes
and failures with other prosecutors and compare notes on the best ways of training subordinates
in making discretionary decisions. Training programs may help prosecutors to develop
partnerships with courts, defenders, other actors in the justice system, community service
providers, and community groups – all of whom are stakeholders in public safety and crime
control.

Defense Counsel

        It is not as common to think of defense counsel exercising discretion as it is to think of
judges, prosecutors, probation and parole officers, and correctional officers exercising discretion.
Yet, there are at least two aspects of discretion in which defense counsel should be trained. First,
they should know and understand the factors most likely to influence the other criminal justice
actors in making decisions in order to be able to offer evidence and to make arguments designed
to assist clients in benefiting from discretionary decisions. Second, they need to understand the
options available to defendants in a variety of community supervision or diversion programs, and
the various risks and benefits of each program in order to be able to offer sound legal advice to
clients about which options are best for them.

         It is probably true that defense counsel have less power than other criminal justice
professionals to initiate actions, as opposed to responding to the initiations of other actors. But,
it is vital for defense counsel to understand the extent of discretion employed by others, the
standards governing the exercise of discretion, and the ways in which discretionary decisions can
enable defense counsel to seek the best possible result for their clients.

        It is equally important for defense counsel to understand the programs and policies
underlying the programs that are available to their clients. Most criminal defendants rely heavily
upon the advice of their counsel in deciding whether to plead guilty or go to trial, to opt for an
alternative disposition or to prefer the traditional adjudicatory approach to a criminal case, or to
enter a treatment program or simply serve a sentence. Defense counsel are called upon daily to
exercise careful judgment in considering the options available to a defendant and the
characteristics of that defendant. These judgments are in the nature of discretionary
recommendations, and they require as much careful thought and assessment as the decision of
prosecutors in making charging decisions.

       The Commission also heard from defense counsel that the success or failure of
prosecutorial diversion/community supervision programs may turn on the willingness of defense
counsel to support the programs and recommend them to their clients. The best prosecutorial
programs are those in which defense counsel, the courts and other criminal justice professional
support. Some of the best programs are influenced by suggestions of defense counsel as they
persuade prosecutors that programs can be improved in order to both increase the likelihood of a
defendant’s rehabilitation and decrease the likelihood of recidivism.




                                                                                                 165
Probation and Parole Officials, and Correctional Officials

          The Commission also heard testimony about the extent to which probation/parole and
correctional officials exercise great power over a criminal defendant’s freedom. Probation and
parole officials are responsible for supervising probationers and parolees who are given
provisional freedom and whose liberty may be limited or controlled by the supervising officials.
Correctional officials make the myriad day-to-day decisions that determine the conditions and
often the duration of the court-imposed sentence. The parole board makes a discretionary
decision to release an inmate under the indeterminate sentencing model, and the parole officer
responsible for supervising the offender after release (or the probation officer in the case of a
suspended sentence) has the power to recommend whether the offender should return to prison in
the case of non-compliance with release conditions, or to give the offender another chance. The
efforts of Jorge Montes, Chair of the Illinois Prisoner Review Board, to change the culture of the
Board, described in the report on our recommendations on parole supervision,6 strikingly
illustrate how changing concepts of what constitutes an effective sanction can influence the
exercise of discretion on the part of paroling officials.

        In jurisdictions that have adopted determinate sentencing and abolished discretionary
parole, executive clemency may provide the only possibility of release before the expiration of
the sentence. In some jurisdictions parole boards are charged with making clemency
recommendations to the governor, as in Illinois, Maryland and Arkansas, and in some
jurisdictions a separate clemency board has this function. In a handful of states, including
Connecticut, parole and clemency functions co-exist in a single board, which is responsible for
making the clemency decision independent of the governor.7 Of all the decisions made in the
course of a criminal case, the decision whether or not to pardon or commute a sentence is
perhaps the most obvious and formal exercise of discretion. Yet few parole boards (or clemency
boards) have articulated the considerations that go into exercise of that discretion, established
standards, or even shared their experiences with other boards that have the same responsibility.8

         As a general matter, perhaps out of an abundance of caution, corrections and parole
officials do not see their role as involving the exercise of discretion as much as they see it as
involving the enforcement of rules. It is important for them to recognize that it involves both,
and that the balance of rule and discretion is an elusive and important one in the criminal justice
system. Whether or not they are aware if it, that balance is struck by them personally on an
almost daily basis.

     It is always less risky for a deciding official to opt for incarceration over release to the
community. This was brought home to the commissioners at its Chicago hearing, where Patricia

6
 See Recommendation on Improvement in Probation and Parole Supervision, supra.
7
 Other states that follow this model are Alabama, Georgia, Idaho, South Carolina, and Utah. See Margaret Colgate
Love, Relief from the Collateral Consequences of a Criminal Conviction: A State by State Resource Guide,(W.S.
Hein, 2006), condensed at http://www.sentencingproject.org/rights-restoration.cfm.
8
  The ABA has taken the position, in response to a recommendation of the Justice Kennedy Commission in 2003,
that jurisdictions should “establish standards governing applications for executive clemency.” See Report No. 121C,
Annual 2003.



                                                                                                                166
Caruso, Director of the Michigan Department of Corrections, there to testify about her agency’s
reentry programs, was simultaneously dealing long-distance with the political fall-out from a
high profile murder committed by a parolee who had apparently been mistakenly released. The
decision to release a prisoner always involves some “political” risk. Yet, the just exercise of
discretion means that officials who seek to do justice must be willing to accept the responsibility
that accompanies release decisions. The Commission was impressed by testimony from
Arkansas and Maryland officials that their respective governors take their clemency
responsibilities seriously and have commuted sentences in appropriate cases.9

        Corrections and parole officials should also be trained in the factors that should be
considered when discretionary decisions are made that can have profound implications not only
for an individual’s freedom, but also for the prospect of successful reentry. In order to assure
that officials make informed decisions, jurisdictions should provide them with training on the
most accurate and current research and findings available as to the effectiveness of the available
range of criminal sanctions.

Training and Cross-functional Communication

        The Commission believes that it would be particularly helpful if judges, prosecutors,
defense counsel, probation/parole and corrections officials, and others who exercise discretion
could share with one another their experiences in balancing respect for and observance of rules
with the discretionary power to make exceptions to those rules. There is no reason why
prosecutors should not share with judges the factors they consider in making charging decisions,
or why judges should not share with prosecutors the factors they consider in imposing sentences.
Both prosecutors and judges should understand the factors considered by corrections and
supervisory officials in deciding when a person should be released and when returned to prison.
The standards governing the exercise of executive clemency or other discretionary pardoning
authority should also be made clear to all actors in the system.

        The sound exercise of discretion is likely to be improved if the actors in the criminal
justice system talk to each other about what matters, how much it matters and why it matters.
Indeed, the sound exercise of discretion could also be promoted if officials who exercise
discretion would include defenders, community representatives, mental health professionals and
drug counselors in their training programs. There is a danger when prosecutors train only with
prosecutors, judges only with judges, etc. that preconceptions or misconceptions may be
reinforced rather than challenged.

        In the end, officials with discretion must decide how best to exercise it. The goal should
be, however, to provide them with as much valid information and thoughtful guidance as
possible. As the Commission has previously recommended,10 criminal justice officials can
benefit from a broader understanding of how they interact with others to accomplish the common
goals of justice and public safety.


9
    See March 3 Hearing Notes, available at http://www.abanet.org/cecs.
10
     See Recommendation on Alternatives to Incarceration and Conviction for Less Serious Offenders, supra.


                                                                                                             167
                Respectfully submitted,


                Stephen A. Saltzburg, Co-Chair
                James R. Thompson, Co-Chair

February 2007




                                                 168
TAB L




        169
About the Joint Commission

On September 23, 2003, American Bar Association President Dennis W. Archer, Jr.,
announced the appointment of a Joint Commission to Evaluate the Model Code of
Judicial Conduct. Read more about the commission at:
http://www.abanet.org/judicialethics/about.html

Reports and Comments
http://www.abanet.org/judicialethics/house_report.html

Revised Report to the ABA House of Delegates (as of 12/06)
Please visit: http://www.abanet.org/judicialethics/

News
An independent, impartial judiciary is indispensable to the system of justice that has prevailed in the United
States for more than 200 years. The birth and evolution of our judicial system and the preservation of its
key role in our democracy have been due in large measure to the character and dedication of the men and
women who have presided in our courts.

But equally essential to assuring the efficacy of our system of justice has been the confidence of the public
in the independence, integrity and impartiality of our judiciary as an institution. As our Commission
worked over the past three years to examine every word and concept in the ABA Model Code of Judicial
Conduct, the members of the Commission achieved an ever-increasing appreciation of the crucial
importance of these concepts, and measured each decision we made about refinements, changes, additions
or deletions in the Code against these "three I's," independence, integrity and impartiality. We have
endeavored to adhere to and apply those principles throughout the Code, firm in the belief that they are
indispensable to preservation of the public trust in our judiciary and confidence in our legal system.

No code can anticipate every question that may arise in its interpretation and application, or guard against
every pitfall inevitably faced by conscientious judges in their daily work. Rather, we have worked to
provide sound, clear and reasonable guidance so that judges faced with uncertainty can find both direction
and aspirational comment in the code that will help them function at an optimum level and maintain the
rectitude demanded by the serious responsibilities of their office. We have also sought to provide a clear
and understandable Code that enables the public to readily understand what to expect of their judiciary and
when it is appropriate and reasonable to expect discipline to be applied in cases of judicial misconduct.

As we approach the ABA Midyear Meeting February 2007, we look forward to a careful, thoughtful review
and discussion of the proposed Code because the issues addressed by the Code are commanding and
challenging. We are confident that the forthcoming debate will result in a sound Model Code for judges and
the public that will serve us for many years to come.

October 2006 Statement of Mark Harrison, Commission Chair




                                                                                                                 170
TAB M




        171
172
173
174
TAB N




        175
          National Conference of Specialized Court Judges
                             By-laws



ARTICLE 1.1
Name

This organization shall be known as the National Conference of Specialized Court Judges
of the Judicial Division of the American Bar Association (“Association”), and shall be
referred to herein as the “Conference.”

ARTICLE 1.2
Purpose

The purposes of the Conference shall be the purposes of the American Bar Association as
stated in its constitution within the particular area of administration of justice. To that
end, the purposes of this Conference shall be to gather, study and disseminate
information about the organization, procedures and business of trial courts, and
particularly courts of special or limited jurisdiction; to present and conduct programs with
respect to such matters at regional, state and other meetings of the bar and other
associations; to cooperate with law schools and other educational institutions; to foster
and promote organizations of judges within the various states; and to maintain facilities
for dissemination of information to judges.

ARTICLE 2.1
Eligibility

Membership shall be open to any members of the Judicial Division of the Association
who is serving as a judicial officer in a court of specialized or limited jurisdiction.

ARTICLE 2.2
Associate Members

Any Judicial Associate or International Associate of the Judicial Division who is serving
as a judicial officer in a court of specialized or limited jurisdiction shall be eligible to
become a Judicial associate or International Associate of this Conference, subject to
Association policies and guidelines.




                                                                                               176
ARTICLE 2.3
Delegate Members

Each state, or other jurisdiction, as hereinafter defined, by its Chief Justice or other chief
judicial officer, may designate as Delegate-Members four judicial officers of that state or
other respective jurisdiction, provided that each judicial officer so designated is a
member of the Conference. If within 90 days before the Annual Meeting in any year, the
Executive Committee has not received notice that at least one judicial officer has been
designated as a Delegate-Member from the particular state or other jurisdiction, the
Conference Chairperson may designate a member of the Conference from that state or
other jurisdiction to serve as its Delegate-Member. If a Delegate-Member dies, becomes
disabled or resigns, the chief judicial officer who designated that Delegate-Member may
designate a successor. Each Delegate-Member or his or her successor shall serve in that
capacity until adjournment of the next Annual Meeting following such designation. A
federal chief judicial officer may designate as Delegate-Member only another federal
judicial officer. Delegate members shall serve as liaisons to their respective jurisdictions.

ARTICLE 2.4
Termination Of Membership

Any member of the Conference whose annual dues to the Judicial Division are more than
six months past due shall cease to be a member of the Conference. Any person who
ceases to be a member of the Association shall also cease to be a member of the
Conference.

ARTICLE 3.1
Annual Meeting

The Conference shall meet immediately before or during the Annual Meeting of the
Judicial Division of the Association in the same city at a time fixed by the Executive
Committee.

ARTICLE 3.2
Special Meetings

The times and places of Executive Board or Committee meetings may be fixed by the
Chair, and meetings of the general membership must be approved by the Board of
Governors of the Association.

ARTICLE 3.3
Quorum

The members of the Conference present at a meeting of the membership shall constitute a
quorum for the transaction of business.




                                                                                                 177
ARTICLE 3.4
Agenda
The agenda of the Annual Meeting of the membership shall consist of the election of
officers and members of the Executive committee and such others matters as the Chair of
the Conference deems appropriate. The agenda of a special meeting of the membership
shall consist of those matters which the Chair of the Conference deems appropriate or of
which notice has been given.
ARTICLE 3.5
Notice
Notice stating the place, date and hour of any annual or special meeting of the
membership may be given by publication in any journal or newsletter published by the
Association or this Conference. Otherwise, it shall be delivered either personally or by
mail to each Conference member. Such notice shall be given at least 60 days in advance
of the meeting or in such other reasonable period of time as appropriate.
ARTICLE 3.6
Parliamentary Authority
The Chair shall preside at all meetings of the Conference and may appoint for a like term
one of the Executive Committee members to serve as parliamentarian. Such appointment
shall not disenfranchise the Executive Committee member. Proceedings at any general or
special meeting of the Conference and at Executive Committee meetings shall be
governed by “Robert’s Rules of Order, Revised.”
ARTICLE 4.1
Powers and Functions
    (a) The Executive Committee shall be vested with the powers and duties necessary
    for the administration of the business of the Conference. It shall authorize all
    commitments for expenditures of Conference monies. However, it shall not
    authorize commitments for expenditures in a fiscal year which would exceed the
    income and reserves of the Conference for that fiscal year without approval of the
    Board of Governors of the Association.
    (b) The Executive Committee is authorized to establish and organize into
    appropriate organizational structures and committees as it deems necessary to carry
    out the activities and purposes of the Conference. The Executive Committee shall
    establish an appropriate chain of responsibility for any organizational structures and
    committees which it may create. No action of the Conference committee or any
    other organizational component shall be effective until approved by the Executive
    Committee of the Conference of by the membership of the Conference. The
    authority to establish committees and organize them into appropriate organizational
    structures shall be deemed delegate by the Executive Committee to the Chair of the
    Conference unless the Executive Committee determines otherwise.




                                                                                             178
ARTICLE 4.2
Composition
The Executive Committee shall be comprised of the following individuals: The Chair;
Chair-Elect; Vice-Chair; the immediate past Chair; the Secretary; 9 District
Representatives representing geographical areas as set out below; and 3 at-large District
Representatives.
DISTRICT I                                      DISTRICT II
Maine                                           Connecticut
Massachusetts Delaware
New Hampshire                                   Maryland
New York                                        New Jersey
Rhode Island                                    Pennsylvania
Vermont                                         Ohio
DISTRICT III                                    DISTRICT IV
District of Columbia                            Georgia
Illinois                                        North Carolina
Indiana                                         Puerto Rico
Kentucky                                        South Carolina
Virginia                                        Tennessee
West Virginia
DISTRICT V                                      DISTRICT VI
Alabama                                         Iowa
Arkansas                                        Michigan
Florida                                         Minnesota
Mississippi                                     North Dakota
Missouri                                        South Dakota
Virgin Islands                                  Wisconsin
DISTRICT VII                                    DISTRICT VIII
Kansas                                          Arizona
Louisiana                                       California
New Mexico                                      Colorado
Oklahoma                                        Hawaii
Texas                                           Nevada
                                                Utah
DISTRICT IX
Alaska
Idaho
Montana
Nebraska
Oregon
Washington
Wyoming



                                                                                            179
ARTICLE 4.3
Terms of Office for Officers
          (a) The terms of the Chair, Chair-Elect and the Vice-Chair are each one
          Association year, beginning with the adjournment of the Annual Meeting
          during which that person is elected.
          (b) The Chair-Elect automatically becomes the Chair of upon the adjournment
          of the next Annual Meeting of the Association and is not again eligible for
          election to either office.
ARTICLE 4.4
Term of Office for District Representatives
The term of a District Representative is three Association years beginning with the
adjournment of the Annual Meeting during which such representative is elected. The
terms of at least one-third of the District Representatives shall expire each year. No
District Representative may serve more than two successive terms in that capacity.
ARTICLE 4.5
Meetings
           (a) The Executive Committee shall hold at least one regular meeting each
           year at the time and place of the Annual Meeting of the Association. The
           Chairperson shall, upon request of five members of the Executive
           Committee, call a special meeting of the Executive Committee between
           Annual Meetings. A majority of the entire Executive Committee shall
           constitute a quorum for meetings of the Executive Committee. The
           Executive Committee meetings shall be open to attendance by any
           Conference member except when the Executive Committee meets in
           executive session.
           (b) There shall be neither absentee nor proxy voting at Annual or special
           meetings.
           (c) If a meeting of the Executive Committee is not feasible, the Chairperson
           of the Conference shall, upon the written request of five members of the
           Executive Committee, submit in writing to each of the members of the
           Executive Committee any item upon which the Executive Committee may be
           authorized to act. The members of the Executive Committee may vote upon
           the proposition either by written ballot or by telephone, confirmed in writing,
           to the Secretary of the Conference who shall record the proposition and votes
           on the matter.
           (d) Matters before the Executive Committee shall be determined by a
           majority vote of those Committee members voting.




                                                                                             180
ARTICLE 4.6
Compensation
No salary or compensation for services shall be paid to or by any Officer, member of the
Executive Committee, or any committee members, except as may be specifically authorized
by the Board of Governors.

ARTICLE 4.7
Vacancies and Attendance at Meeting
If any member of the Executive Committee or Officer shall fail to attend two successive
business meetings of the Executive Committee, that member’s seat on the Executive
Committee or their office shall be vacated automatically unless the member upon request is
excused for good cause by action of the Executive Committee. The Chair shall immediately
notify the Executive Committee member or Officer when that person’s seat on the
Committee is declared vacated. Between Annual Meetings of the Conference, the Executive
Committee may fill vacancies in the seats of the District Representatives or Officers at a
meeting or in the manner provided in 4.5(c). The Executive Committee, between the Annual
Meetings of the Conference, may also fill vacancies in the office of the Chair-Elect, Vice-
Chair, Secretary, Budget Officer, or Conference Delegate. A member of the Executive
Committee or Officer appointed to fill a vacancy shall serve for the remainder of the term of
such seat or office, after which the usual election process shall apply. The number of terms
for which a member may be elected to a particular office is not altered by the appointment of
that member to fill a vacated term of office.
ARTICLE 5.1
Officers
The officers of the Conference shall be the Chair, the Chair-Elect, who will also serve as ex-
officio Budget Officer, and the Vice-Chair.
ARTICLE 5.2
Chair
The Chair shall perform the following duties:
          (a) Preside at all meetings of the members of the Conference and of the
          Executive Committee;
          (b) Appoint the Secretary and members of all committees of the Conference
          and their chairs who are to hold office during the term of the Conference Chair.
          (c) Plan the program of the Conference during the ensuing term, subject to the
          directions and approval of the Conference;
          (d) Superintend the performance of all activities of the Conference.
          (e) Keep the Conference members informed of the activities of the
          Conference and implement its decisions;
          (f) Perform such other duties and acts as usually pertain to such office or as
          may be designated by the Executive Committee.



                                                                                                 181
ARTICLE 5.3
Chair-Elect

The Chair-Elect shall aid the Chair in the performance of the latter’s responsibilities in
such manner and to such extent as the Chair may request and shall preside at meetings of
the Conference and the Executive Committee in the absence of the Chair. Such person
shall perform such duties and have such powers as usually pertain to such office or may
be designated by the Executive Committee or the Chair. In the case of death, resignation
or disability of the Chair, the Chair-Elect shall perform the duties of the Chair for the
remainder of the Chair’s term or disability. The Chair-Elect shall serve as ex-officio
Budget Officer and Chair of the Committee on Finance and Budget.

ARTICLE 5.4
Vice-Chair

The Vice-Chair shall aid the Chair in the performance of the latter’s duties in the manner
and to the extent the Chair may request. Such officer shall preside at meetings of the
Conference and the Executive Committee in the absence of the Chair and Chair-Elect.
The Vice-Chair shall serve as ex-officio Plans and Development Officer and Chair of the
Committee on Plans and Development.

ARTICLE 5.5
Secretary

The Secretary shall be appointed by the incoming Chair for a one-year term beginning
with the adjournment of the Annual Meeting and shall perform the duties of Recording
and Corresponding Secretary and be a voting member of the Executive Committee of this
Conference. The Secretary shall be the liaison between the Conference and the
Association staff with respect to the retention and maintenance of books, papers,
documents, and other property pertaining to the work of the Conference. The Secretary
shall keep a true record of the proceedings of all meetings of the Conference and of the
Executive Committee.

ARTICLE 5.6
Conference Delegate

At an Annual Meeting of the Conference, the membership shall elect a delegate to the
Association House of Delegates for a term of three years. The Conference Delegate shall
represent the Conference in the House of Delegates and shall meet with and report to the
Executive committee but shall have no vote before the Committee. A member may be
elected to this office only twice.




                                                                                             182
ARTICLE 5.7
Budget Officer

The Chair-Elect while serving in that capacity shall also serve as the ex-officio Budget
Officer for the Conference. The Budget Officer shall keep and accurate record of all
income and expenditures of the Conference. The Budget Officer shall monitor all
accounts, reports, and other documents prepared relating to Conference funds, revenues,
and expenditures and shall make certain that all such reports, accounts, and other
documents are accurate and correct. Such officer shall advise the officers and Executive
Committee as to the effect of any proposed action by the officers, Executive Committee
or Conference which, in the Budget Officer’s judgment, would have significant impact on
the financial condition of the Conference. The Budget Officer shall prepare a projected
budget for presentation to the Executive Committee at the time of the Annual Meeting, or
such other time as may be expressly fixed by the Executive Committee. The Budget
Officer shall submit to the Conference at the Annual Meeting a report on the
recommendations and reports on financial affairs of the Conference as may be requested
by the Chair of the Conference or the Executive Committee.

ARTICLE 6.1
Nominating Committee

At any time, not later than the close of the Mid-Year Meeting, the Conference shall
appoint a Nominating Committee of at least three members of the Conference who are
not candidates for office, a majority of whom shall not be either a present officer or
member of the Executive Committee. The Chair shall promptly announce the names and
addresses of the members of the Nominating Committee in an Association publication or
by other means to Conference members. If a vacancy should occur in the membership of
the Nominating Committee, the Chair may appoint a member to fill that vacancy. One or
more candidates may be nominated by the Nominating Committee for each position to be
filled as provided in these By-Laws. The Nominating Committee shall report the identity
of each nominee and shall include a brief statement of the nominee’s activities in the
Conference and in the legal profession. The Nominating Committee shall submit its
report to the Chair of the Conference not later than 90 days prior to the Opening
Assembly of the Annual Meeting.

ARTICLE 6.2
Petition And Floor Nominations
One or more additional nominations may be made for any office, including District
Representative of the Executive Committee by petition signed by not less than 10
members of the Conference, representative of at least three states. The petition must state
that the individual nominated has agreed to the nomination. The petition shall be sent to
the Chair of the Conference and must be received no less than 60 days prior to the
Opening Assembly of the Annual Meeting. Nominations may be made from the floor for
any office except that nominations for District Representative may be made only by
members from that district during their election caucus.



                                                                                              183
ARTICLE 6.3
Publication of Names of Nominees

Not less than 40 days prior to the Opening Assembly of the Annual Meeting, the Chair
shall publish the names of nominees for all elected in a Judicial Division publication.

ARTICLE 6.4
Election

At a business meeting of the Conference, prior to the time of the election as published in
the official program of the Annual Meeting of the Association, the Chair shall announce
the nominees for the offices of Chair-Elect, Vice Chair, Conference Delegate to the
Judicial Division and District representatives. An election of the Chair-Elect, Vice Chair
and at-large District Representatives shall be held at each Annual Meeting. District
Representatives representing geographic areas shall be elected only by the members from
their representative geographic areas at district caucuses held during the Annual Meeting.
The Chair also shall announce the time and place at which the election shall be held as
stated in the official program of the Annual Meeting of the Association. All elections
shall be held at a business meeting of the Conference during the Annual Meeting.
Elections for positions for which there is more than one nominee shall be by written
ballot. Election shall be by a majority of votes cast by those members present and eligible
to vote for that office. If there are more than two candidates for a single office and not
one of them receives a majority of the votes cast, then there shall be a second ballot
between the two candidates having the greater number of votes on the first ballot.

ARTICLE 6.4
Election

At a business meeting of the Conference, prior to the time of the election as published in
the official program of the Annual Meeting of the Association, the Chair shall announce
the nominees for the offices of Chair-elect, Vice Chair, Conference Delegate, to the
Judicial Administration Division and District Representatives. An election of the
Chairperson-elect and Vice-chairperson shall be held at each Annual Meeting. The
District Representatives shall be elected only by the members from their representative
geographic areas at district caucuses held during the Annual Meeting. The Chair also
shall announce the time and place at which the election shall be held as stated in the
official program of the Annual Meeting of the Association. All elections shall be held at a
business session of the Conference during the Annual Meeting. Elections for positions
for which there is more than one nominee shall be by written ballot. Each position shall
be voted upon separately. Election shall be by majority of the votes cast by those
members present and eligible to vote for that office. If there are more than two candidates
for a single office and no one of them receives a majority of the votes cast, then there
shall be a second ballot between the two candidates having the greater number of votes
on the first ballot.




                                                                                              184
ARTICLE 7.1
Standing Committees
There shall be standing committees on (1) Nominations, (2) Finance and Budget, (3) Plans
and Development, (4) Education, (5) Membership, (6) the Flaschner Award, and (7) such
other standing committees as shall be established from time to time by vote of the Executive
Committee.
ARTICLE 7.2
Special Committees
Consistent with the power delegated in Article 4, special committees may be appointed by
the Conference Chair to consider and carry out special matters that may be deemed of
importance or benefit to the Conference. The Chair shall state the purpose of each special
committee appointed for the ensuing year. Special committees shall terminate at the end of
the appointing Chair’s term unless extended by the incoming Chair or otherwise provided for.
ARTICLE 7.3
Appointment
All committees, both standing and special, shall be appointed promptly by the Conference
Chair who shall designate the chair of each committee in accordance with these Bylaws. In
case of the failure of the committee chair or any member of the committee to perform
delegated duties, the Conference Chair shall have the power to remove such person and
appoint a replacement.
ARTICLE 7.4
Committee on Nominations
The Committee on Nominations shall consist of such members, and shall consider and report
its nominations, as provided in Article 6.
ARTICLE 7.5
Finance and Budget Committee
The Finance and Budget Committee shall serve a one-year term. The Budget Officer shall
serve as Committee Chair and perform those duties as may be assigned.
ARTICLE 7.6
Plans and Development Committee
The Plans and Development Committee shall serve a one-year term. The Vice-Chair shall
serve as Committee Chair and perform those duties as may be assigned.

ARTICLE 7.7
Education and Membership Committees
The Education Committee and the Membership Committee shall each serve a one-year term.
The Conference Chair, upon election at each Annual Meeting, shall promptly designate the
respective committee chair.




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ARTICLE 7.8
The Flaschner Award Committee
This Committee shall be designated the Flaschner Award Board and shall consist of 5
members of which 2 are ex-officio, the Chair-Elect of the Conference and its Vice-Chair.
The remaining 3 members shall serve three-year staggered terms. The Board shall adopt
standards and procedures for presenting the Franklin N. Flaschner Award consistent with
Article 8.
ARTICLE 8
Franklin N. Flaschner Award
The Franklin N. Flaschner Award shall be presented annually at the general business
meeting of the Conference held in conjunction with the American Bar Association
Annual Meeting. The purpose of the award is to recognize on a national level, the
outstanding judge of a special court or a court of limited jurisdiction. After soliciting
nominations, the Flaschner Award Board shall select the recipient who, in the Board's
judgement, is most deserving of this recognition. The selectee must be a judge of special
or limited jurisdiction who has made an outstanding and significant contribution of time
and effort on a local or national level towards the improvement or education of the
judiciary, the upgrading of the administration of justice, the improvement of
court-community relations, and who possesses the high ideals, standards, and character
expected of the judiciary. The standards and procedures for bestowing the Flaschner
Award and operations of the Board shall be determined by the Flaschner Award Board
subject to ratification by the Executive Committee of the Conference.
ARTICLE 9
Amendments
These Bylaws may be amended at any Annual Meeting of the Conference by a 2/3 vote
of the members of the Conference present and voting, provided such amendment shall
first have been approved by the Executive Committee. Notice of an intention to amend
these Bylaws must be given to the membership no later than 45 days prior to the opening
of the Annual Meeting. Amendments shall become effective upon approval by the
Conference and the Board of Governors of the Association.
ARTICLE 10
Representatives of Association Position
Any action by this Conference must be approved by the House of Delegates by the Board
of Governors of the Association before the action can be effective as the action of the
Association. Any resolution or recommendation adopted or action taken by the
Conference shall, on request of the Committee or the Conference, be reported by the
Chair or the Conference delegate to the House of Delegates or to the Board of Governors
for action by the Association.


Approved by the ABA Board of Governors February 2, 2002



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