ABA Death Penalty Resolution
  Kent S. Scheidegger*

On February 3, the American Bar Association adopted a resolution calling for a moratorium on capital punishment until the country conforms to the ABA's notions of good policy. This resolution says more about the ABA than it does about capital punishment. The ABA's transformation from a broad umbrella organization representing the entire bar into a shill for the criminal defense bar is now clear for all to see.

The ABA's greatest power comes from its prestige as the purported voice of American lawyers as a whole. When the ABA promulgates standards for the administration of justice or model rules of ethics, those standards and models have often been adopted by legislatures, courts, and official state bars and thus given binding force.

However, in criminal law the standard-making function has been captured by the advocates for one side and used as an implement to wage political battles. These advocates may soon discover that in the act of catching the butterfly they have crushed it. When ABA standards become political instruments for one side, rather than a consensus of the bar, they lose their moral force. Without moral force they become just one more interest group's opinion, and they are far less likely to be adopted by bodies with lawmaking power.

The ABA's drift to the defense is a problem of long standing. In such areas as grand jury subpoenas, making contact with suspects under investigation, and forfeiture of drug profits, the ABA has not only adopted the defense position, but has misused its ethics and standards function. For example, after Congress had decided to forfeit drug proceeds and repeatedly refused to exempt drug money used to pay lawyers, and after the Supreme Court had upheld this practice,(1) the ABA Standards Committee proposed a "standard" against such actions. Forfeiture is, of course, highly controversial, as other articles in the issue demonstrate. However, to say that a government attorney acts unethically or in a substandard manner by carrying out Congress' constitutional decision is preposterous.

The ABA's recent death penalty resolution demonstrates a similar misuse of standards. The ABA simply dresses up in sanctimonious wrappings its policy preferences, which have already been considered, debated, and rejected by Congress. The resolution claims to be based on fairness and "impartiality" while completely ignoring the legitimate concerns of capital punishment supporters.

"Competent" Counsel

The politicization of standards can be seen in the ABA's gymnastic flip on qualifications of attorneys to handle post-conviction proceedings. In 1987, there was no statutory right to be habeas counsel. As a result, lack of attorneys was seen as a crisis on the defense side. The ABA took out a full page ad exhorting attorneys to volunteer, expressly assuring them that they "need not have extensive criminal law or postconviction experience."(2) The same issue contained an interview with Ronald Tabak stating that he had come into the field from commercial law with virtually no criminal experience and that any good lawyer could do the same.(3)

One year later, Congress gave all death row inmates a right to appointed counsel.(4) In addition, a political consensus was forming that states would be provided incentives (either carrots or sticks) to create a right to counsel in state collateral proceedings. Now a shortage of attorneys would mean holding up the process, rather than executions going forward without them. With the political implications reversed, the ABA dutifully performed a gold-medal-contender somersault.

Suddenly, a lawyer must be an "experienced and active trial practitioner" with at least three years defense experience to be qualified for habeas corpus work in the ABA's eyes.(5) Experienced lawyers who have been doing capital appeals and habeas corpus for years are suddenly unqualified to continue doing so. Former prosecutors who know these areas of law as well as any defense attorney are also arbitrarily barred, for no apparent legitimate reason. The illegitimate reason is all too apparent. Most hypocritically, the very lawyers the ABA assiduously recruited only two years earlier are now branded as unqualified. The jump "from Wall Street to death row," which the ABA had previously lauded, it now proposed to virtually forbid. The real criteria of competence had not changed. Only the consequences of a shortage had changed.

There is no doubt that capital punishment is a complex area and needs competent counsel, but the ABA's rigid "standards" would do little to further that goal. The ABA's primary experience requirement is in criminal trials generally, not capital cases. Thus, the "standards" require no experience in the most complex area involved. They appear to be intended merely to artificially restrict the supply of what is now an essential component of the machinery of capital punishment by disqualifying a broad class of lawyers.

The ABA is also upset that "Congress has ended funding for Post-Conviction Defender Organizations (PCDO's), which have handled many capital post-conviction cases and have recruited and supported volunteer lawyers in these cases for many years."(6) This statement fails to convey the true nature of the PCDO's. A window into the mentality prevailing in these organizations appears in an article by the head of the Illinois Capital Resource Center:

"Sometimes counsel should file motions just to make trouble. It is part of a capital defense attorney's job to do just that. If the prosecution wants to kill the client, they have to go through the defense attorney. File motions for money, for special investigations, and for opinion polls of the community. File all kinds of motions. Support them as much as possible with affidavits or proffers that can be introduced in evidentiary form. Constantly make a record and constantly make trouble."(7)

Although not often stated in public media, this attitude was pervasive in the PCDO's. An ABA ethical rule of long standing squarely prohibits such abusive tactics,(8) yet the ABA seems singularly uninterested in unethical obstruction by its pet agencies.

Defunding was a drastic step, but something had to be done, and this blunt instrument is the only truly effective one Congress had. The legitimate function of appellate or post-conviction counsel is to investigate possible claims, winnow out the weak ones,(9) and present the better ones to the courts in a professional and expeditious manner. If the ABA wanted to save the PCDO's for their legitimate function, it should have recognized the validity of the prosecution's complaints about their obstructionist tactics and proposed steps to end them. The fact it did not strongly suggests it was more interested in preserving their illegitimate function.

Habeas Corpus Reform

The second major point in the ABA resolution involves habeas corpus reform. When a state criminal defendant's federal claims have been rejected on appeal, he can file the same claims in federal court in a habeas corpus petition. From 1953 (10) until last year, federal courts were authorized to overturn the considered final judgments of coordinate state courts merely because they disagreed with them on close questions.

This "heads I win, tails we take it over" system produced a heavy bias in favor of defendants. The defense position would prevail if a majority of either the state or the federal court accepted it. In addition, the system produced enormous delay and expense while borderline issues far removed from the original Bill of Rights had to be litigated twice. Under this system, federal courts often overturned state court judgments, only to have the Supreme Court determine years later in a different case that the state courts had been right all along.(11)

After 43 years of this, Congress finally stepped in. It provided that the state court judgment would stand on those issues where reasonable judges can differ, but that federal habeas corpus would remain available if the state courts disregard Supreme Court precedent or fail to reasonably apply it.(12)

This was a compromise, falling considerably short of the "full faith and credit" afforded to all other state court judgments.(13) Yet the ABA is apoplectic. It turns a deaf ear to the legitimate complaints against de novo review. Its report supporting the resolution does not even mention the problem of lower federal courts wrongly overturning valid state judgments.(14)

Even worse, that report deliberately distorts the case law on habeas corpus. The report states "Prisoners have not been entitled even to a single stay of execution to maintain the status quo long enough to complete post-conviction litigation," citing McFarland v. Scott, 114 S.Ct. 2568 (1994). The report also asserts "prisoners have often not been allowed to litigate more than one petition, even if they have offered strong evidence of egregious constitutional violations that they could not have presented earlier," citing McCleskey v. Zant, 499 U.S. 467 (1991).

In fact, both of these cases held the exact opposite of these propositions. The Supreme Court granted McFarland's stay for the specific purpose of maintaining the status quo long enough to get his petition filed,(15) after which the federal court must maintain the stay long enough to adjudicate the claim on the merits.(16) McCleskey held that inability to present a claim earlier was cause to excuse a procedural default, but that McCleksey had not met that requirement.(17)

The ABA has long maintained that it is unethical to mislead courts on the law.(18) Why is it acceptable for ABA reports to baldly misstate precedents to the House of Delegates and the general public?

Reading this report, there can be no doubt that it is a pure anti-death penalty product. It is riddled with slanted statements, half-truths, and a few outright falsehoods. A neutral "umbrella" organization, such as the ABA purports to be, should present its House of Delegates with either a neutral, balanced report or a two-part report with one part written by each side. The report actually presented is the product of an organization with no interest in balance.(19)

Racial Discrimination

The third point of the ABA's resolution deals with racial discrimination. Here again, the report is riddled with half-truths. It cites studies claiming to show a greater likelihood of a death sentence in white-victim cases than in black-victim cases.(20) However, it fails to mention the contrary study by Rand Corporation, (21) and it fails to mention the factual finding of the District Court in the McCleskey case that Baldus' data do not, in fact, support his conclusion.(22)

More substantively, though, the ABA response to the problem of discrimination is obstructive rather than constructive. The ABA supported the so-called Racial Justice Act, which should have been titled the Death Quota Act. That Act would have made numerical analyses prima facie evidence of state discrimination, with no showing that state actors had done anything wrong.

The claim of discrimination is, in essence, a claim that the death penalty is not imposed often enough, particularly in black-victim cases. In 1972, the Supreme Court decided that unfettered discretion in sentencing was arbitrary and unconstitutional,(23) and the states responded with various kinds of structured systems to constrain jury discretion. In the years since, the Supreme Court, at the behest of defense bar, has systematically attacked the structure it once required, striking down one state's law after another for placing too much restraint on the jury.

First, the court struck down all mandatory sentencing,(24) even for convicted murderers who murder again.(25) Then it struck down attempts to structure the penalty by specifying which factors could be mitigating,(26) even a list that tracked the Model Penal Code.(27) Requirements that the jury be unanimous on aggravating circumstances are common, yet a reciprocal requirement on mitigating circumstances fell beneath the axe.(28)

All this occurred without a peep from the ABA. That organization often finds the resources to support defendants in capital cases, yet it has never in the post-Furman era filed a brief in support of the prosecution in a capital case, even while the devices for channeling the jury were being systematically destroyed. Instead, it imperiously demands that the states make bricks without straw.

The ABA is quick to appeal to equality when that argument is a device for attacking the death penalty. However, when considerations of equality point to a stricter capital jurisprudence, with less room for discriminatory refusal to impose the penalty, it is strangely silent.

The opponents of capital punishment have utterly failed in their attempts to persuade the American people. Solid majorities across all racial, geographic, income, and educational lines favor it.(29) The anti-death penalty strategy now is to kill it by imposing unrealistic conditions on its imposition. While pretending to be neutral, the American Bar Association is, in fact, an active participant in that strategy.

*Kent S. Scheidegger is the Legal Director of the Criminal Justice Legal Foundation, Sacramento, California

  1. United States v. Monsanto, 491 U.S. 600, 610, 614 (1989).
  2. Wanted: Pro Bono Counsel for Indigent Death Row Inmates, 14 Hum. Rights 29 (Winter 1987).
  3. Quade, From Wall Street to Death Row, 14 Hum. Rights 18, 62-63 (Winter 1987).
  4. 21 U.S.C.§848(q)(9).
  5. American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 5.1 III, at 59 (1989).
  6. Harris, Report Accompanying Recommendation 107, at 4 (1997).
  7. Lyon, Defending the Death Row Penalty Case: What Makes Death Different?, 42 MercerL.Rev. 695, 700 (1991).
  8. American Bar Association, Annotated Model Rules of Professional Responsibility Rule 3.1, at 297 (3d ed. 1996); id., at 302 (no exception for "dilatory tactics" by criminal defense lawyers).
  9. ee Murray v. Carrier, 477 U.S. 478, 484 (1986).
  10. Brown v. Allen, 344 U.S. 443 (1953). Before Brown, the rule was that when the processes of state review and certiorari to the Supreme Court had been completed, "a federal court will not ordinarily re-examine upon habeas corpus the questions thus adjudicated." Ex parte Hawk, 321 U.S. 114, 118 (1944).
  11. See, e.g., Adamson v. Ricketts, 865 F.2d 1011, 1027 (9th Cir. 1988) (Arizona death penalty unconstitutional because judge, rather than jury, finds qualifying circumstances); Walton v. Arizona, 497 U.S. 639, 647-649 (1990) (that issue had been settled the other way years earlier); Dunn v. Simmons, 877 F.2d 1275, 1278 (6th Cir. 1989) (Kentucky procedure for adjudicating validity of prior conviction violates "federal standards"); Parke v. Raley, 506 U.S. 20, 28 (1992) (Kentucky rule "easily passes constitutional muster"); Collins v. Lockhart, 754 F. 2d 258 (8th Cir. 1985) (Arkansas death penalty law unconstitutional in part); Perry v. Lockhart, 871 F.2d 1384, 1393 (8th Cir. 1989) (Collins overruled as irreconcilable with later Supreme Court precedent).
  12. See 28 U.S.C.§2254(d).
  13. See 28 U.S.C.§1738.
  14. Harris, supra note 6, at 11-12.
  15. McFarland, 114 S.Ct., at 2574.
  16. Lonchar v. Thomas, 134 L.Ed.2d 440, 449 (1996).
  17. 499 U.S., at 502.
  18. Model Rules, supra note 8, Rule 3.3, at 307.
  19. While the report states it is not official ABA policy, it is publicized by the ABA along with the resolution. It can be found on the ABA Web page, http://www.abanet.org. If a dissenting report exists, it is not similarly publicized.
  20. Harris, supra note 6, at 13.
  21. Klein & Rolph, Relationship of Offender and Victim Race to Death Penalty Sentences in California, 32 Jurimetrics J. 33 (1991).
  22. McCleskey v. Zant, 580 F.Supp. 338, 368 (N.D. Ga. 1984), aff'd in part ,753 F.2d 877, aff'd sub nom. McCleskey v. Kemp, 481 U.S. 279 (1987) ("The best models which Baldus was able to devise which account to any significant degree for the non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either" the prosecution's decision to seek the death penalty or the jury's decision to impose it).
  23. Furman v. Georgia, 408 U.S. 238 (1972).
  24. Woodson v. North Carolina, 428 U.S. 280 (1976).
  25. Sumner v. Shuman, 483 U.S. 66 (1987).
  26. Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality).
  27. Hitchcock v. Dugger, 481 U.S. 393 (1987); cf. Model Penal Code § 210.6(4).
  28. McKoy v. North Carolina, 494 U.S. 443 (1990).
  29. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1994, at 181 (1995).

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