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
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.
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
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)
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
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
*Kent S. Scheidegger is the Legal Director of the Criminal Justice
Legal Foundation, Sacramento, California
- United States v. Monsanto, 491 U.S. 600, 610,
- Wanted: Pro Bono Counsel for Indigent Death
Row Inmates, 14 Hum. Rights 29 (Winter 1987).
- Quade, From Wall Street to Death Row, 14 Hum.
Rights 18, 62-63 (Winter 1987).
- 21 U.S.C.§848(q)(9).
- American Bar Association Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases,
Guideline 5.1 III, at 59 (1989).
- Harris, Report Accompanying Recommendation
107, at 4 (1997).
- Lyon, Defending the Death Row Penalty Case:
What Makes Death Different?, 42 MercerL.Rev. 695, 700 (1991).
- 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).
- ee Murray v. Carrier, 477 U.S. 478, 484 (1986).
- 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).
- 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
- See 28 U.S.C.§2254(d).
- See 28 U.S.C.§1738.
- Harris, supra note 6, at 11-12.
- McFarland, 114 S.Ct., at 2574.
- Lonchar v. Thomas, 134 L.Ed.2d 440, 449 (1996).
- 499 U.S., at 502.
- Model Rules, supra note 8, Rule 3.3, at 307.
- 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.
- Harris, supra note 6, at 13.
- Klein & Rolph, Relationship of Offender
and Victim Race to Death Penalty Sentences in California, 32 Jurimetrics
J. 33 (1991).
- 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).
- Furman v. Georgia, 408 U.S. 238 (1972).
- Woodson v. North Carolina, 428 U.S. 280 (1976).
- Sumner v. Shuman, 483 U.S. 66 (1987).
- Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality).
- Hitchcock v. Dugger, 481 U.S. 393 (1987); cf.
Model Penal Code § 210.6(4).
- McKoy v. North Carolina, 494 U.S. 443 (1990).
- Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics-1994, at 181 (1995).