A Report from the Chair
James E. Coleman, Jr.
The first time that I seriously thought about how the death penalty was administered was in November 1983, when two associates at Wilmer, Cutler & Pickering asked me to supervise their representation of Stephen Todd Booker, an inmate on Florida's Death Row, then scheduled to be executed in seventeen days. Prior to that, I had not gone out of my way to think much about the criminal justice system. But in 1983, I was introduced to the reality of that system, or more correctly, to one dark corner of the system. And what I saw appalled me.
In nine years of practicing law prior to 1983, I had never felt that a judge before whom I had appeared had put expediency above fairness and justice. But in 1983, that was the overwhelming sense that I had, even in federal court. The state trial judge who presided over the first hearing in the Booker case abruptly walked off the bench at 5:00 p.m. on the first day of the hearing, before we had put our last witness on the stand. At that time, he rejected our claim on the merits, and summarily denied our application for a stay of execution. He did, however, invite us to put in the remainder of our case as a proffer, although he had no interest in hearing it.
Since then, I have come to understand that what I saw in 1983 was only the tip of an iceberg that makes a mockery of all that we claim to value in our system of justice. Incompetent lawyers are appointed to represent capital defendants; race continues to be a factor in the decision to seek the death penalty; and judicial conduct that in 1983 was only a matter of practice, today is sanctioned by federal law. And yet, many of us remain silent, suggesting that capital punishment is someone else's problem.
When the American Bar Association finally decided in 1997 to call for a moratorium on the death penalty, after years of trying to coax jurisdictions with capital punishment to remedy the major defects in their systems, an extraordinary thing happened: both the public and the media responded positively. The Section of Individual Rights and Responsibilities has documented this response in two reports, the most recent of which was released in January 2000-Refocusing the Death Penalty Discussion in America: Impact of the American Bar Association Call for a Moratorium on Executions (1998); A Gathering Momentum: The Continuing Impact of the American Bar Association Call for a Moratorium on Executions (2000). Rather than continue to rely on others to act, the ABA decided to take the lead. That was the right decision and the public response confirms that fact. Indeed, in light of the crisis that crippled the system, the ABA had no choice.
Now, it is more important than ever to press forward aggressively with the moratorium. And every member of the ABA must do his or her part. After his retirement from the Court, Supreme Court Justice Lewis F. Powell, Jr., a former president of the ABA, told his biographer that the manner in which the death penalty was administered "offended [his] sense of dignity and his conception of the majesty of the law." The former Justice concluded that it was better to "have done with the whole ugly mess than to continue an indecent, embarrassing, and wasteful charade." All of us know that Justice Powell was right.
I was surprised to read last fall that Burley Mitchell, a former Chief Justice of the North Carolina Supreme Court who supports the death penalty, had stated candidly that the administration of the death penalty was "totally arbitrary." But Mitchell's candor also reflects the troubling complacency with which lawyers and judges now accept the embarrassment and charade about which Justice Powell spoke. This is how former Chief Justice Mitchell described the system: "It's like being picked in a lottery. When you execute one out of 100 every year, there can be no consistency to it. It's almost like one of those ancient societies that used to pick out someone to execute for a good crop that year."
My question is this: If an avowed supporter of the death penalty will candidly, almost casually, admit that the system is as bad as opponents of the death penalty say it is, how can any lawyer refuse to do what is necessary to change it? The simple truth is that none of us can sit on the sideline in this effort. Each of us owes it to our community and to our ideal of justice to do what we can to fix the defects in the current system, or abolish the system.
We are all aware of Illinois' death penalty problems. We also know that Illinois is not the worst state among those with capital punishment. Indeed, there is no state in which the death penalty can withstand successfully the same intense scrutiny to which it was subjected in Illinois. Our duty is to see that such scrutiny is applied in each jurisdiction with capital punishment. As Justice Powell said, in its current form, the death penalty is a "discredit on the whole legal system."