March 2002

Letters

My compliments to Mr. Panitch for his December 2001 editor's page article. He treated well a difficult topic, neither maligning religion nor excusing the excesses of those claiming to be religious.

We would all be better off if everyone, religious or not, actively respected the dignity of each individual. That is a high standard, but we ought to reach for it. Thanks to Mr. Panitch for keeping our eyes focused on a lofty goal.

I would like to thank David A. Larson for his article "Proud to Be a Lawyer: The Noble Profession" in the January Bar News. I was deeply moved by his words and inspired to consider my own actions. For the last month, since reading his article, I have been searching "within [my] own conscience the touchstone against which to test the extent to which [my] own actions should rise above minimum standards."

I've discovered that the highest standard is, and should be, immeasurable. Can one adequately measure their sense of justice? Truth? Equality? So long as we believe that the height of our standards is infinite, we will continually be striving to achieve excellence and our thirst for justice will never be quenched.

Thank you, Dave, for reminding me of the rewards our profession brings to the rest of society when we, as individuals, exercise nobility and moral virtue. I am truly proud to be a lawyer.

I would like to comment on the American Bar Association's request (January Bar News, p. 9) that the WSBA, along with all other state bar associations, support a moratorium on the death penalty. While a "moratorium" implies a temporary halt, the ABA request is unclear about when such a moratorium would end, what criteria would need to be satisfied to end it, and who would judge whether those criteria were satisfied. It is not apparent to me that the ABA is actually undertaking a program to address any of the adverse circumstances which it claims create the need for a moratorium. Rather, the moratorium itself will be seen as "solving" these problems, in much the same way that euthanasia solves all medical problems, and will therefore become permanent without a formal decision to make it so.

I am sure this formula for ending capital punishment, without making a formal decision to do so, appeals to politicians who want to placate both opponents and supporters of the death penalty, and it is probably attractive as a rationale for those of us who are ambivalent on the question. We can tell ourselves that we support the death penalty "in principal," but that it is just too difficult to implement fairly and at a reasonable cost to society. But we would be dishonest with ourselves and our fellow citizens. If we oppose capital punishment in any possible case (including for Osama bin Laden and his fellow mass murderers), we should just say so and wrestle honestly with the real issue, rather than hiding behind procedural excuses. The unwillingness to say what we mean is a major reason many of our fellow citizens do not trust the legal profession, yet here we are, doing it again, at the same time we are talking about being proud to be attorneys.

The problems of clogged criminal courts, inadequate defense counsel, and inadequate support for exculpatory scientific evidence are present in noncapital cases as well. While the finality of the death penalty is qualitatively, as well as quantitatively, more severe than incarceration, can we say that, so long as we are not threatening to take his life, a defendant should not complain that he was unjustly imprisoned for life due to these problems? The problems need to be solved anyway.

A proponent of the death penalty might respond to the ABA arguments as follows. First, clogging in the courts is largely a result of the care we take to ensure that capital sentences have adequate support in the evidence and undergo painstaking appellate review, combined with legislative refusal to properly fund the court system. Just as increased funding for prison facilities has allowed longer prison terms and decreased violent crime, increased funding for the courts will speed justice and decrease criminal activity between indictment and sentencing. Second, the problem of inadequate counsel is a failure of the legal profession to insist on high standards and adequate compensation for the criminal defense bar (in contrast to the free, independent counsel provided to all defendants in military courts-martial). Third, the fact that a new type of scientific evidence has absolved some defendants after trial is a reason to incorporate such evidence in all new trials and make it freely available to those appealing their sentences, but it is hardly a reason to relieve from the death penalty the majority of defendants whose guilt is not undermined by DNA evidence.

President Carlisle is correct in classifying this issue as one we should debate. And the proper forum for the debate is in the political process, where our fellow citizens can participate, rather than in an elitist and dishonest "lawyers know best" decision by the members of the state bar.