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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