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BBA Council Endorses Proposed ABA Resolution on Zero-Tolerance Policy

January 17, 2019

UPDATE: We’re pleased to report that the ABA adopted this resolution at their mid-year meeting in January.

December was a busy month for the BBA Council. In addition to adopting a position on Massachusetts trust and estates legislation, which you can read about here, the Board also endorsed a proposed ABA Resolution related to federal immigration policies and practices.  This proposal will be voted on by the ABA House of Delegates at the Mid-Year meeting at the end of this month.

The Resolution

The Resolution and accompanying report were drafted in response to concerns over the US Attorney General’s “zero-tolerance policy,” which, as the accompanying report states, “mandates the prosecution for illegal entry of everyone apprehended at our southern borders between ports of entry, including asylum seekers,” and “Operation Streamline,” under which “en masse hearings combine the initial appearance, preliminary hearing, plea, and sentencing into one single proceeding that can last less than one minute per defendant.” The resolution reads in full:

  • RESOLVED, That the American Bar Association calls upon the Attorney General to rescind the policy of prosecuting all individuals who enter the United States without authorization at the southern border for the misdemeanor offense of illegal entry pursuant to 8 U.S.C. §1325, end the practice of expedited mass prosecution of immigrants, and allow for an individualized determination in deciding whether to file criminal charges.
  • FURTHER RESOLVED, That the American Bar Association urges the federal judiciary to take appropriate measures to assure that every defendant charged with the misdemeanor offense of illegal entry is represented by counsel who has had an adequate opportunity to consult with the defendant, and that any guilty plea is knowing, intelligent, and voluntary.
  • FURTHER RESOLVED, That the American Bar Association urges Congress to provide sufficient funding for the judiciary to enable it to take the above measures and sufficient funding to assure that each defendant receives effective assistance of counsel.
  • FURTHER RESOLVED, That the American Bar Association urges the Attorney General to exercise prosecutorial discretion and refrain from prosecuting asylum seekers for the offense of illegal entry.

  The report accompanying the proposed resolution explains why the ABA Commission on Immigration and other groups are so concerned about this policy and practice , focusing specifically on the “significant due process” and public safety issues. The report first points to the conclusion drawn by several former U.S. Attorneys that devoting prosecution resources to the mandatory prosecution of misdemeanor improper entry actually detracts from public safety by leading to a dramatic decrease in prosecutions for other serious crimes. These crimes include drugs and weapon smuggling, human trafficking, and environmental crimes. In a letter to the Attorney General on this issue, a bipartisan group of former U.S. Attorneys stated: “Under your Zero Tolerance policy, firearms cases, violent crime cases, financial fraud cases, and cases involving public safety on Indian reservations all take a back seat to these lesser, weaker misdemeanor cases.”  

The report next discusses the significant due process concerns presented by Operation Streamline, which began as a pilot in the Del Rio border sector in 2005, continued sporadically until 2018, and then was expanded across the southern border of the U.S. by the zero-tolerance policy. While the stated purpose of the practice is to deter entry without authorization, there is no evidence that that the policy has had that effect.  This practice raises significant due process concerns, as the use of en masse hearings mean that Federal public defenders typically only have a few minutes to meet, interview, and prepare each client prior to the court proceedings and questions by the judge are also often predominantly done en masse.

            More specifically, these concerns have led the drafters of the report to worry that the guilty pleas procured in these hearings may not even be valid as “under the rush of these proceedings, a defense attorney has only a brief opportunity to meet his or her clients — in a public setting — immediately prior to a scheduled guilty plea hearing to discuss the charges and the decision whether to plead guilty.” Additionally, this makes it difficult or impossible for defense attorneys to fulfill their duty of providing effective assistance of counsel, as they do not have the time required to adequately evaluate the evidence, investigate the veracity of the allegations, and consider any potential defenses. And it’s not only the counsel and clients who suffer from these policies, the report highlights that judges and magistrates are put in an untenable position by having to preside over these group proceedings, since they must determine before accepting a guilty plea, that it was made knowingly, voluntarily, and intelligently.  

            Finally, the report highlights specific concerns related to asylum seekers. The mandatory prosecution of everyone, including those seeking asylum, deprives prosecutors of the discretion to consider cases on the merits, “contrary to accepted norms concerning the sound exercise of prosecutorial discretion.”

Read the full proposed resolution and report here.

BBA Background

                As you likely know by now, the BBA has recently adopted a Statement of Principles Concerning Immigration and Related Issues, which includes four key principles and a full report of the background and reasoning behind them. The document was intended not only as an expression of the BBA’s positions and core values in this area but also as a guide in responding to future immigration questions and challenges. In this instance, the principles most relevant for analyzing the zero-tolerance policy and Operation Streamline are Principle 3 and Principle 4.

Principle 3 calls for the protection and enforcement of due process and equal protections rights for all. The report specifically states:

“Those well-settled principles—that immigrants, including those who have entered the country without documentation, are entitled to the protections of the Due Process and the Equal Protection Clauses—should serve as the foundation for the BBA’s approach to addressing immigration issues.”

Principle 4 provides that “[e]very person should have the full and meaningful ability to exercise their rights and to access justice through the legal system regardless of immigration or citizenship status, level of income, or economic circumstance.” And the report specifically references Operation Streamline in the provision related to “Access to Counsel and Individualized Hearing:”

“Furthermore, when defendants in immigration proceedings seek to assert their rights and privileges, they must be afforded the right to an individualized hearing of the unique facts of their case. … [G]roup hearings and other shortcuts in immigration proceedings have been imposed, particularly along the southwest border, in which ‘a single attorney can represent dozens of defendants at a time, [and] might not be able to speak confidentially with each client or might have a conflict of interest among clients.’ In such cases, judges may take as little as 25 seconds to hear the case of each defendant. Such proceedings cannot be viewed as offering meaningful access to counsel, due process, or justice. [citations omitted]”

            Asylum-seekers are also entitled to due process in pursuing their claims before federal immigration officials.  The BBA used the immigration principles to speak on this issue just a few months ago, expressing concern about newly-imposed limits on their ability to do so, and saying:  “While not all individuals who arrive at our border are eligible for asylum, under law each and every one must be afforded a meaningful opportunity to have their claim for asylum heard.” The extent to which these policies hinder the ability of asylum-seekers to have their claims heard is therefore deeply troubling.

Finally, the BBA has a long history of supporting adequate funding for the judiciary, making it a priority of our state budget campaign each year, so it’s only natural that we urge for adequate funding for the federal judiciary, in order to accommodate the resolution’s call for a right to effective representation by counsel for every defendant charged with the misdemeanor offense of illegal entry.

Next Steps

At the end of this month, the ABA hosts its Mid-Year Meeting where the House of Delegates will vote on a range of proposed resolutions, including this one. Our ABA Delegates, both former BBA Presidents, Mary Ryan, of Nutter McClennen & Fish, and  Lisa Arowood, of  Arrowood LLP, have and will continue to communicate our support for the proposal and urge for its adoption. We’ll be sure to keep you posted on whether this important resolution is adopted and other developments in this space!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association