Human Rights
Volume 24 Number 2 Spring 1997
A Report from the Chair
The Task Ahead: Reconciling Justice with Politics
At the ABA Midyear Meeting in San Antonio, the House of Delegates adopted Resolution 107 by a wide margin. That resolution calls upon jurisdictions that have capital punishment to refrain from its use until greater fairness and due process is assured. Interest in the resolution in the weeks since its passage has been extraordinary. Press inquiries and congratulatory call have come from many quarters. Not surprisingly, there also has been political grandstanding and namecalling.
Within days of the vote, the U.S. House of Representative 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--along with groups from the American Red Cross to Mothers Against Drunk Driving--to proposed legislation known as the Istook amendment--intended to prevent nonprofit organizations that receive any federal money from lobbying or otherwise participating in public advocacy. If this proposal became law, Mothers Against Drunk Driving could not lobby for a higher drinking age, and the ABA could not participate in law reform.
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 the ABA Board of Governors, which recommended its approval; by bar luminaries like Ben Civiletti and Jack Curtin, 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 is 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 that 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--that 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 message has sounded loud and clear. Indeed, the extraordinary press coverage sparked by the ABA's action appears to have reinvigorated the long quiescent debate about capital punishment in this country. Dozens of newspapers, including The Dallas Morning News and many other leading publications in death penalty states, 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 in this country.
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--particularly our counterparts in Individual Rights Sections--to give life to the resolution. Each state's practices and procedures must be examined, and 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 in San Antonio and beyond 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
1996-97 Section Chair
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