Spring 1997, Volume XII, Number 2
The Death Penalty
The ABA Calls for a Moratorium on the Death Penalty: The Task Ahead -- Reconciling Justice With Politics
by Leslie A. Harris
[Editor's Note: This is a revised version of an article that first appeared in the Spring 1997 issue of Human Rights, the quarterly publication of the ABA's Section of Individual Rights and Responsibilities]
At the ABA Midyear Meeting in San Antonio, the House of Delegates adopted Resolution 107, cosponsored by the Section of Individual Rights and Responsibilities, the Litigation Section and others, by the wide margin of 280-119. That resolution calls upon jurisdictions that have capital punishment to refrain from its use until greater fairness and due process are assured.
Interest in the resolution in the weeks since its passage has been extraordinary. Press inquiries and congratulatory calls have come from many quarters. Not surprisingly, there also has been political grandstanding and name-calling. Within days of the vote, the U.S. House of Representative's Republican Policy Committee widely circulated a document entitled, "How the ABA Became a Left-Wing Lobbying Group," which purports to demonstrate that the death penalty moratorium vote is one in a long line of actions that places the ABA outside of the "mainstream" and therefore makes the ABA an "illegitimate" participant in the judicial selection process. Among items cited as evidence of this proposition are the ABA's "serious concerns" about substantial portions of last year's immigration reform legislation, its opposition to cutbacks in availability of federal habeas corpus and its opposition to proposed legislation intended to prevent nonprofit organizations that receive any federal money from lobbying or otherwise participating in public advocacy.
All these developments have led me to ponder who defines the mainstream in American legal thought. Should it be politicians who measure "mainstream" by polling data and carefully crafted sound bites?
In my view "mainstream" is better defined by the 20 former presidents of the American Bar Association -- supporters and opponents of capital punishment alike -- who voiced their full support for the resolution; by bar luminaries who spoke eloquently in favor of it; and by the House of Delegates itself, which adopted the resolution by more than a two-thirds margin. Surely anyone listening to the debate would have been struck by the depth of knowledge and respect for opposing views demonstrated there that are rarely heard in political discourse today. That's because the debate was not about politics, it was about justice. And for ABA lawyers -- many of whom have participated in one of the more than 400 capital cases placed by the ABA's Post-Conviction Death Penalty Representation Project -- the meaning of "justice" has been informed by the tragic circumstance that those cases often present.
The resolution's passage is easy to understand when viewed through the lens of an organization that stands for justice and the rule of law. But now we face a more formidable task: translating a resolution about justice into a message that will resonate in an inherently political debate. Because if the resolution is to have lasting significance, it is lawmakers -- not lawyers-- who will have to embrace reform.
To encourage that reform, the ABA must direct its message to the American people, as well as to the politicians. Since the ABA's historic vote, the extraordinary press coverage appears to have reinvigorated the long quiescent debate about capital punishment in this country. Dozens of newspapers have editorialized in support of the ABA's action, and articles on the ABA action appeared in papers large and small across the country. What's more, dozens of radio and television shows used the resolution as a point of departure to take a serious look at how capital punishment is being administered.
Now that we have the public's attention, we must do more. Although the ABA itself generally does not lobby state legislatures, we can work with state and local bars to give life to the resolution. Each state's practices and procedures must be examined, and we urge law professors and socio-legal scholars in the states to lend a hand. Lawmakers and the public need to be educated to the need for reform. At the same time, pro bono resources -- particularly at the trial level-- must be expanded. While we should expect no overnight transformation, our actions can be a catalyst for real reform. The ABA has taken a courageous and principled first step to that end. Now it's time for our lawmakers to join the mainstream and do the same.
Leslie A. Harris is the Chair of the Section of Individual Rights and Responsibilities of the American Bar Association.
Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum
Arbitrariness and the Death Penalty | Race and the Death Penalty
Victims and the Death Penalty | Purposes of the Death Penalty
Teaching about the Death Penalty | Conclusion and Participants List
Unedited Death Penalty Forum
ABA Calls for Moratorium | Policy, Statistics, and Public Opinion
Multidisciplinary Teaching about the Death Penalty
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