Report From Governmental Affairs

ABA Successes in Congress

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As the 108th Congress drew to a close in November, the ABA could point to a number of recent achievements on Capitol Hill, and the association began looking ahead.

• Innocence Protection Act. A major accomplishment was the enactment of legislation (P.L. 108-405) that includes the Innocence Protection Act, which will provide grants to help states improve the quality of legal representation in state death penalty cases.

The act, which is supported by the association as a priority issue and based on ABA developed guidelines, came after more than five years of discussion and debate in Congress. A final compromise combined the act with provisions to address the backlog of untested DNA samples in the nation’s crime labs, to provide training for criminal justice and medical personnel in the use of DNA evidence, and to provide rights to victims of federal crimes.

“This day has been long in coming,” says Mark Agrast, past chair of the ABA Section of Individual Rights and Responsibilities, which helped develop association policies on death penalty representation. “While the Innocence Protection Act is only a first step, it is an important one that will help protect the innocent from unjust conviction and execution by ensuring access to DNA testing for eligible inmates and improving the quality of counsel in capital cases.”

• Torture Prevention. Also passed late in the Congress was the Department of Defense authorization bill that includes ABA supported proposals to prevent torture of prisoners in U.S. custody. The provisions in the new law (P.L. 108-375) establish U.S. policy to “treat all foreign persons captured, detained, interned or otherwise held in the custody of the United States humanely and in accordance with standards that the United States would consider legal if perpetrated by the enemy against an American prisoner.” The ABA adopted its policy against torture in August after allegations of the use of abusive interrogation techniques by the Department of Defense, the Central Intelligence Agency and U.S. government contractors at U.S. detention facilities in Iraq, Afghanistan and Guantanamo Bay, Cuba.

• Civil Rights Tax Relief Act. The new corporate tax law (P.L. 108-457) includes provisions to provide fairness in the treatment of damage awards for unlawful employment discrimination. The provisions, which were part of the proposed CRTRA, eliminate the double tax on attorney fees in such cases, the result of both the winning plaintiff and the attorney paying taxes on fee awards.

During the 109th Congress, the association will push for enactment of other CRTRA provisions that would correct inequities in the tax treatment of employment discrimination awards that resulted from provisions in the Small Business Job Protection Act of 1996. The proposals would eliminate taxes on damages recovered for pain, suffering and humiliation, and mitigate the tax effect of receiving back pay and front pay in one year by providing income averaging for those recoveries.

• Mental Health of Inmates. Treatment of inmates with mental health and substance abuse problems is the focus of another new law supported by the ABA. The legislation provides incentives for the criminal justice, juvenile justice, mental health and substance abuse treatment systems to work together at each level to establish a network of services for offenders with mental illness. The new law (P.L. 108-414) also creates mental health courts and funds efforts to find alternative methods to incarceration for nonviolent offenders and ways to prevent recidivism.

• Legal Services Corp. Funding. While the LSC now enjoys the bipartisan support of Congress and the Bush administration, securing adequate funding remains a challenge due to the budget deficit and the war on terrorism. Funded through an omnibus appropriations bill for fiscal year 2005, the LSC will remain about the same as last year with an appropriation of $335.282 million.

• State Justice Institute. P.L. 108-372 reauthorizes the SJI at an annual funding level of $7 million through fiscal year 2008. The ABA has supported the SJI since its creation in 1984, emphasizing that it is the only entity established by Congress to award grants to improve the quality of justice in state courts and foster innovative, efficient solutions to common problems faced by all courts.

• Administrative Conference of the United States. Congress revived this federal agency, which enjoyed bipartisan support for more than 25 years before being terminated in 1996. The new law (P.L. 108-401) authorizes funding for three years, beginning with $3 million in fiscal year 2005. The ABA strongly supported reauthorization of the administrative conference, which the association maintains will provide urgently needed resources and expertise to the government as it reorganizes to address terrorism, to promote public participation in electronic rulemaking, and to refine the Congressional Review Act.

Looking Ahead

When the 109th Congress convenes in January, the ABA will continue efforts in a number of legislative areas. They will include opposition of court stripping legislation that limits the jurisdiction of courts to consider certain cases, opposition of federal pre emption of state tort laws, and support for increased judicial salaries and greater funding for the LSC.

The ABA also will be urging Congress to enact legislation to suspend new amendments to the sentencing guidelines that the association believes threaten attorney client confidentiality, to reinstate the established business relationship exemption to allow associations to fax advertisement materials to members without prior written permission, and to establish a grant program to help states aid prisoners who are re entering the community after serving time for their crimes.

Also high on the ABA’s list will be efforts opposing provisions that may be part of bankruptcy reform legislation that would increase the liability and administrative burdens of bankruptcy lawyers. The ABA also will be working toward assuring that intelligence reform legislation based on the recommendations of the 9-11 Commission would not diminish procedural and due process protections afforded to individuals in the immigration system.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

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