January 2002

On the BOG Plate: WSBA Policy Issues to Debate

by Dale L. Carlisle, WSBA President

As we enter 2002, the WSBA Board of Governors is considering three issues affecting all lawyers and clients. All of them have been debated for some time, and there are no easy solutions. The issues being considered are: (1) Should the WSBA support legislation that emphasizes treatment rather than confinement for drug offenders?; (2) How does the WSBA move forward on a study of the death-penalty moratorium?; and (3) What is an effective way to pursue adequate government funding of our courts? While these are not the only matters that will occupy the Board of Governors over the next few months, they are issues which will get increasing attention from us during the three-month-plus session of the Legislature in early 2002.

Two of the more serious clogs in our criminal justice system are an overloaded court system and an increased prison population resulting from drug offenses. The King County Bar Association (KCBA) has finished a study which concludes that a "treatment" approach for offenders will significantly help reduce the negative impact on our criminal justice system — from courtrooms to prison cells. The Washington State Medical Society has joined the KCBA and other interested groups in seeking legislation to implement some of the conclusions of the study.

Even with the political conflicts this study and its conclusions will likely generate, I believe there is benefit to the courts, prisons, and our criminal justice system in supporting many of the conclusions. (As I write this, I am not sure of the governors' views on the specific conclusions of this study, but the conclusions related to criminal sanctions are issues that deserve our time, attention and action, despite the fact we enter a political arena to do so.)

The American Bar Association has requested that the WSBA support a death-penalty moratorium in our state. The main reason stated is that death-penalty cases clog the court system and use up assets of the courts. A second reason given is the allegation that some appointed defense counsel may not have the appropriate experience to litigate death-penalty cases. Finally, a claim is made that new evidence, often DNA evidence developed after the fact, has changed the results in too many of these cases. (I wish to emphasize that the issue being considered is whether a moratorium on enforcement of the death penalty should be supported; the WSBA is not being asked to take a position on the death penalty.)

In 2000, the Board of Governors elected to seek a study to determine if the reasons given for a death-penalty moratorium are applicable to Washington. Currently, a funding source for the study has not been determined; however, the WSBA will not financially support the study. The August 2001 series of articles published in the Seattle Post-Intelligencer spotlighting death-penalty issues may help gain the attention needed to develop funding sources.

Over the last few months, the WSBA has been asked by most court levels and many judicial groups to support efforts to maintain adequate funding for state and municipal courts. Similar requests have come from local bar associations and the Washington State Trial Lawyers Association. As a result of the current economic recession and the "Tim Eyman-type" initiatives of the past few elections, more attention is focused on already challenged court budgets. How does the WSBA help these individual court systems? Should the WSBA enter individual city and county budget issues if we determine we should help? Although individual court-funding issues are a political decision, adequate funding to provide prompt justice affects us all, and historically the WSBA has supported adequate court funding from state and county levels. The problem may be our need to agree internally with judges and trial lawyers on the definition of "adequate funding." By doing this, our annual task of supporting funding legislation becomes better supported and more valuable to the justice system.

Each of the above items fits within at least one of the WSBA's strategic goals. Why do I write this? I do so because the governors and I would like your direction and ideas on these topics. Do you have suggestions on how we can efficiently prioritize the work required to meet our goals? The Board of Governors will remain sensitive to our obligation to refrain from using WSBA resources or the Bar's name to support political issues; however, we believe we must address matters which directly affect the functioning of our justice system. In my view, all three issues meet the test. What do you think?