The Lesson Yet Learned

 The over 2,800 people on death row in the United States in 1994 and a population steadily growing at the rate of about 150 a year  should be statement enough as to the need.  There is sound logic to support the belief of many informed persons that a large majority of these death sentenced persons will be executed.  
 However, most knowledgeable, realistic, seasoned observers of executions in America know intuitively that there is a socially acceptable rate of execution  that is the controlling factor of how many people a state will execute in a given period of time.  Informal, institutional controls will prevent the number of executions from exceeding the accepted rate.
 The Supreme Court is now sanctioning executions at the same rate that they were carried out before the moratorium strategy was implemented.
In 1982, Jack Greenberg, one of the masterminds of the moratorium strategy, assured the concerned ever-growing capital defense bar that there was "no reason to believe" that the astounding 60% rate of reversal in habeas corpus proceedings would ever be significantly reduced.  However, Ronald Reagan was packing the federal bench with conservative judges who were determined to make the death penalty a reality.  In 1983, the Supreme Court began affirming death sentences and writing decisions that were clearly designed to free the court from the trap of LDF's Catch-22 logic.
 As  one commentator put it, the court was deregulating the death penalty, just as Reagan was deregulating industries.
 By the end of 1984, even the most optimistic advocates of the moratorium strategy recognized that the Supreme Court was not going to abolish the death penalty or continue to create new standards for imposing it that made it virtually impossible to execute anyone.  Twenty-one executions were carried out in 1984.  Death row populations were growing in every state and the supply of volunteer counsel to represent the condemned in collateral proceedings was insufficient to meet the demand.
 It was impossible for LDF's lawyers to provide real leadership to the anti-death penalty movement in the mid-eighties.  There were too many execution dates, too many death row inmates who needed lawyers and too many negative developments in the law for LDF to devise and implement a single strategy for dealing with the crises.  The lawyers who had deliberately created a huge death row population to force the Supreme Court to choose between an unprecedented blood bath and abolishing the death penalty were like so many fingers caught in a crumbling dike.  The tactic of recruiting lawyers to represent every death row inmate became a moral imperative.
 In 1989, Chief Justice Rehnquist coaxed the lawyers who had their fingers stuck in the dike of death into putting their feet into quicksand.   Rehnquist appointed well respected retired Justice Lewis Powell to head a blue ribbon commission to make recommendations for "reforming" the federal habeas corpus statute in death penalty cases.  The Bush administration used the Powell Commission's recommendations to launch a pitched battle to effectively repeal the Great Writ in capital cases through legislation.  LDF mobilized the lawyers in the anti-death penalty movement to use their political influence and thousands of hours of their time to convince the Congress to leave the federal habeas statute alone, at least for the time being.  While that legislative battle was being fought, the Supreme Court severely narrowed the scope of the writ and the death row population grew substantially.
 In the early 1990's when it became almost impossible to win a death case in federal court, the Congress finally agreed to fund resource centers to recruit and mentor lawyers to represent the condemned in collateral proceedings.  There is still a shortage of pro bono habeas counsel for the condemned and underpaid court appointed solo general practitioners in small towns are still ineffectively representing poor people in trials for their lives across America.
 It will be difficult to transfer the resources that are being used in futile collateral litigation to state court trials and direct appeals, where they are more likely to save lives.  The resource centers do not have any discretion to use their federal funds for trial and direct appeal litigation.  The large corporate law firms are better equipped to do collateral litigation because they use death cases as a training tool for recent law school graduates who have no trial experience.  Some large firms do pro bono collateral litigation because they deeply believe that no person should be put to death without legal representation.  That noble sentiment is a strong deterrent to involvement in the trial and direct appeal stages of capital litigation where the states are required to provide free counsel.
 There are similar noble sentiments that deter lawyers with discretion to use their resources in any forum from becoming involved in capital trials and direct appeals.  Some of the finest capital defense lawyers in the nation repeatedly "parachute" into hopeless last minute collateral litigation in the most hostile forums because a condemned person who had already exhausted all of his remedies in state and federal court was about to be executed without a lawyer.
 These practical obstacles to the most effective use of the scarce resources that are available for capital defense work are not insurmountable.  The nation-wide "Emergency Committee to Save Habeas Corpus" that was organized by LDF in 1990 to block legislative repeal of the Great Writ and the campaign that LDF led to obtain clemency for Virginia death row inmate Joe Giarratano prove that a handful of talented advocates can still devise an effective strategy, recruit enough people to carry it out and motivate them to make great personal sacrifices.  Many lives would be saved if that kind of creative energy was focused on preventing death sentences instead of merely writing lengthy obituaries.  The people under death sentences should not be forsaken, but energy, training and effort must be refocused to the front end.  This message has been habitually stated, as the sun rises, from pleas of these authors since 1976.  It has been unheeded as habitually as the sun sets.
 There is no secret plan that will duplicate LDF's early 70's feat of saving hundreds of lives with a single brief.  There are specific ideas for a different focus.  
 The need is for better trained advocates.  Neophyte thinkers believe the legal representation process is contained within the bounds of the courtroom proceeding.  For over 15 years, we have tried to change this thinking.
 There is urgent need for an immediate fundamental change in the way that the capital defense bar uses its time, money, political influence, organizing skills, imagination and legal training to defend the lives of the poor people who have no place else to go for representation.
 If you decide to represent a person accused in a death penalty case, whether or not their name will be added to the roll of Death Row U.S.A. will depend more on your skills than the person's crime.       
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