ABA House of Delegates

During the ABA’s annual meeting in Boston on August 11 and 12, the ABA House of Delegates will consider several recommendations promoting increased diversity, loan forgiveness and legal job corps initiatives for recent law school graduates, the establishment of law clinics for veterans, and international law. Proposals urge new workplace policies to combat domestic and sexual violence, greater protections of LGBT rights, the creation of a legal access job corps, and Congress and the Administration to support and continue public service student loan repayment and forgiveness programs. If adopted, these resolutions become official policy of the Association. The ABA, maintaining that it serves as the national representative of the legal profession, may then engage in lobbying or advocacy of these policies on behalf of its members. What follows is a summary of some of these proposals.


Recommendation 114B, offered by the Commission for Sexual Orientation and Gender Identity, urges the American Bar Association to recognize “that lesbian, gay, bisexual, and transgender (LGBT) people have a human right to be free from discrimination and threats and violence based on their LGBT status and condemns all laws, regulations, and rules or practices that discriminate on the basis that an individual is a LGBT person.”

The Commission maintains that the rights of the LGBT populations are “first and foremost an issue of human rights,” which signals to the privileges and protections afforded to all persons in the “Universal Declaration of Human Rights.” Additionally, the Commission lists several other international conventions that protect against discrimination, including the International Covenant on Economic, Social and Cultural Rights and the 1979 Convention on the Elimination of all Forms of Discrimination Against Women. These conventions “make it clear that discrimination against LGBT people is viewed as a form of impermissible discrimination and denial of human dignity and equality before the law and as a violation of a fundamental human right under generally accepted norms of international human rights law and potentially a crime against humanity.”

The Commission reiterates the ABA’s opposition to any “laws, regulations, customs, and practices” that prohibit LGBT communities from enjoying basic human rights and implore these governments to end such practices. The United States government, the Commission contends, should take every diplomatic effort to support the rights of the LGBT community domestically and to urge foreign governments not to restrict the “rights, privileges, and immunities” of any citizen with regard to their “sexual orientation or gender identity.”                                                                            

Critics observe that sexual orientation and gender identity are not included in any existing international treaties and are not explicitly mentioned in the treaties and conventions cited by the sponsors. This proposal would thus affirm a new human right that does not exist in international law. Critics would also maintain that existing human rights conventions incorporate protections for LGBT rights and this proposal is therefore unnecessary.

Judicial Recusal

Recommendation 105C, sponsored by the Tort Trial and Insurance Practice Section, urges the ABA to support new judicial disqualification and recusal procedures. The Section maintains that to ensure that the country’s court systems remain fair and impartial, “judges must act without regard to the identity of parties or their attorneys, the judge’s own self-interest, or the likely criticism any decision might engender.” In 2009, the United States Supreme Court found that there is “serious risk” for bias when a party with a personal stake in a particular case has “significant and disproportionate” influence on a judicial election. In order to reduce partiality, the judicial recusal or disqualification has long been seen as a way to ensure that an unbiased judge presides over cases.

The Section reports that concerns about bias in judicial rulings have intensified due to increases in expenditures by individual campaigns and their donors. Several court decisions have recently invalidated campaign finance laws, leading to rising costs of judicial elections. The Section contends that this trend could lead to a higher likelihood for biased decisions and have an effect on the public’s confidence in judicial impartiality.

The resolution, if adopted, would urge that states and territories adopt disqualification and recusal procedures that, while not procedurally uniform, contain “certain key concepts.” Jurisdictions should consider the “modern reality of campaign spending” by recognizing that certain campaign expenditures may raise concerns about the impartiality of decisions. Also, procedures must always be transparent. The process must be designed with “sufficient specificity and concreteness” so that no complaints about its clearness could be made. The recusal process should be fully resolved before a trial or briefing. Finally, the procedures must allow for independent review of an order denying the motion for recusal. This concept, the Section outlines, takes into account the difficulty a person may have in judging his or her own potential bias. This process would ensure that the question being asked was not if the judge was or was not biased, but if the “average” judge in his or her position was likely to be biased. Finally, the recommendation states that all states and territories should provide training to judges deciding motions to recuse or disqualify.

Critics of Recommendation 105C maintain that an independent review of a motion for recusal’s denial could be vulnerable to partisan influence, particularly in politically polarized judiciaries. In that setting, critics say, an “independent” review could easily become a vehicle for ideological attacks on a judge. Opponents of the recommendation also observe that the implementation of independent review has more noticeable costs. The independent reviewer must be given all of the facts, which can involve substantial transaction costs and take time.

Another concern is the ambiguity in deciding whether a campaign contribution affects the judge’s ability to remain impartial. There has been little concrete evidence to suggest that this has happened in the past and would be little indication of impropriety in practice. Overall, opponents maintain that, often, the remedies to current procedures will undercut judicial independence more than the problem.

Crimes against Humanity

Recommendation 300, proposed by the American Bar Association’s Center for Human Rights, asks the House of Delegates to urge lawmakers to recognize the “existence and negative consequences” of inadequacies in legislation regarding crimes against humanity, domestically and internationally. The Center’s hope is that by encouraging Congress to improve domestic policy and supporting the creation of an international convention focused on this issue, the international community would thus embrace a clear, uniform, and applicable enforcement policy towards crimes against humanity, support international cooperation on the issue, and improve the quality of human rights internationally.

The Center reports that U.S. policy towards crimes against humanity is deficient. While individual crimes such as rape or murder are punishable offenses, crimes against humanity are not penalized on either the state or federal level which, the Center reports, can turn the U.S. into a “safe haven from prosecution.” Domestic prosecution is also hampered by extraterritorial jurisdiction provisions and current statutes of limitations which legally bar the federal government from taking action against these alleged criminals.

Despite these obstacles, the Center reports that the government has adopted certain statutes that apply to these criminals. Genocide was criminalized almost three decades ago in the Genocide Convention Implementation Act of 1987, which was strengthened in 2007 to apply to any “alleged offender” who is either found in or extradited to the United States, regardless of where the criminal activity occurred outside the country. The Child Soldiers Accountability Act of 2008 allows for the prosecution of anyone who “recruits or uses child soldiers under 18,” however the Center argues that its application is restricted due to a ten year statute of limitations. Overall, the Center urges Congress to enact federal legislation that would criminalize crimes against humanity specifically and to eliminate territorial jurisdiction discrepancies and statutes of limitations.

The Center also recommends that Congress support the creation of a “comprehensive convention” to address the prevention and punishment of a broader definition of crimes against humanity. The Center claims that many atrocities go unpunished because they occurred during peacetime and cannot be considered genocide or are acts of violence “committed outside an armed conflict.”

The Rome Statute of the International Criminal Court (ICC) is widely regarded to be “customary international law,” though the Center details its many deficiencies for prosecuting all types of crime against humanity. For example, the Center reports that the ICC allows for only vertical cooperation between the states and the Court—and even then only in certain “situation” countries—when state to state “horizontal” cooperation may be a better model. Another shortfall of the Rome Statute is that it is non-obligatory in nature. The Rome Statute does not require member states to enact legislation prosecuting crimes that it covers. Furthermore, the Center reports that the Rome Statute is also lacking because it does not require member States to extradite persons requested by other States. The Center claims that a congressional push for a “comprehensive convention” would improve transparency, encourage States to “prohibit and punish” crimes against humanity, and increase cooperation between States.

Pending domestic legislation could curb some of these deficiencies. In 2009, the Crimes Against Humanity Act was proposed, which would have addressed crimes not considered genocide that required “separate legislation” by ending the ability of these criminals to find “safe haven” in the United States. In 2011, the interagency Atrocity Prevention Board was created to give the government the ability for multilateral option for combating crimes against humanity. Globally, the UN’s International Law Commission has emphasized the importance of a convention for crimes against humanity and may place this topic on the “active agenda.” The Center believes these proposals indicate momentum to pressure Congress to enact Federal legislation against crimes against humanity and to push for an international convention on the issue.

The sponsor also cites that the United States has been an international leader against crimes against humanity since the Nuremburg trials and has traditionally supported many international human rights treaties and instruments. The U.S. is also a strong supporter of the ICC, despite not ratifying the treaty. The Center observes that a new push for the creation of a crimes against humanity convention is “consistent with recent strategies” employed by the Federal government. The Center also cites the ABA’s strong support for the creation of “universal criminal jurisdiction” for violent international criminals and ending statutes of limitations for these criminals.

Opponents of Recommendation 300 contest that current federal initiatives against crimes against humanity have been largely ineffective and that additional proposals could make the United States susceptible to culpability and could potentially undermine American sovereignty. Critics cite the Atrocity Prevention Board as an example of an insufficient attempt by the federal government to prevent atrocities and promote human rights globally. While advocates praise the Board’s ability to work through various government agencies, the Board’s lack of action in places like Syria demonstrates its ineffectiveness.

The Recommendation’s critics also contend that the newly specified crimes against humanity are too broad; U.S. military personnel involved in wartime action could be vulnerable to prosecution abroad. The United States has long supported the notion that each nation has the right and the responsibility to prosecute its criminals domestically. Some critics believe that universal jurisdictional practices would be a slippery slope towards legal actions that call into question the legitimacy, sovereignty, and autonomy of recognized and independent nations.

Capital Punishment Compensation

Recommendation 110A, offered by the Criminal Justice Section, recommends the Association pressure governments that permit the use of capital punishment to adopt legislation allowing the “successors” of executed individuals a process by which to establish the innocence of the capital offense for which the individual was executed. Successors include heirs, devisees, and beneficiaries, as well as non-profit legal organizations litigating on behalf of the claimant. Additionally, the Section proposes that such legislation provide to the successors an award of monetary compensation for the wrongful incarceration leading to the execution and for the wrongful execution itself.

The Section reports that this legislation is of pressing importance because there have been over 1,300 wrongful convictions and incarcerations in the past two and a half decades. 8% of these were of individuals on death row. Although there have been no legal determinations that a person has been wrongfully executed, the Section says that “this is not necessarily because no wrongful executions have occurred.” The proposal gives several examples of individuals who were found guilty of capital offenses and placed on death row, but died before they were to be executed. These individuals were later found to have been innocent and were exonerated.

The Section claims that few, if any, jurisdictions offer a pathway for successors of executed individuals to “legally establish” that the individual was put to death wrongly. There are currently a few ways that an executed person can be exonerated, such as executive orders or vague petitions, but the Section urges jurisdictions to allow for more accessible avenues for establishing wrongful executions.

The Section also argues that once a wrongful execution has been found, existing compensation statutes are insufficient to address the erroneous act. For example, the Section reports that one state’s statutes do not allow for compensation for the wrongful conviction and incarceration to be given to successors once the individual has been executed and that the money owed “shall not survive the claimant’s death.” The Section also states that current legislation does not provide compensation for the wrongful execution itself, only for the conviction and incarceration.

New legislation to take into account this proposal would hold jurisdictions accountable for wrongful executions and ultimately lead to either fewer death sentences or even the eradication of the death penalty, according to the sponsor.                               

Opponents of the proposal emphasize that no wrongful executions have been documented in the United States, and this proposal creates a near “contingency fee” arrangement, designed to win financial compensation to otherwise pro bono agents. They would also dilute the mission of groups that pledge to work toward freeing the innocent and to reform the system, as opposed to financial gain. They would also urge that attention should be provided to the many victims of capital offenses.