Op-Ed: 1,000 Executions – A Death Penalty Milestone

The United States will soon mark an historic but lamentable milestone.

As early as Friday, when Kenneth Lee Boyd of North Carolina and Shawn Humphries of South Carolina are scheduled to be put to death, we could see the 1,000th execution in this country since reinstatement of capital punishment in 1976.  If not one of them, it appears likely another man will make history within days, as two others are scheduled for execution between now and mid-December.

Each of these cases, like those before them, presents unique questions of guilt, innocence, or the appropriateness of the sentence.   All, however,  share the distinction of coming through a system in America that imposes the death penalty without first assuring due process – a system that does not guarantee the effective assistance of a competent legal advocate; a system that does not  adequately guard against the impact of bias related to the race of the victim or the defendant, to geography or to economic status; and a system that does not ensure that a defendant’s mental health and character are properly investigated and the evidence presented to the decision maker.  In short, these individuals, like so many before them, face execution without the assurance that justice has been done.

While the American Bar Association has taken no position for or against the death penalty, it has supported a moratorium on executions since 1997 because of profound and systemic problems in the death penalty system.  The ABA has long argued for better lawyers, meaningful standards, and more caution in a system that, regrettably, has been broken for decades.  These are reforms that are long overdue.

The U.S. criminal justice system, with its constitutional guarantee of presumed innocence and protection of individual rights, often has served as a model for other nations. But the reality in death penalty cases is far from that ideal. Administration of the death penalty is neither fair nor consistent, and can fairly be described only as a haphazard maze of unfair practices, a maze that tolerates injustice in case after case.

A temporary moratorium would remove the pressure of impending executions to allow detailed analysis of death penalty administration in each jurisdiction and implementation of the reforms necessary to ensure fairness.

Protocols developed by the ABA offer death penalty jurisdictions a guide to assess their systems against accepted standards for due process and fairness.  If we truly are committed to justice for all, we should implement these standards in every jurisdiction that seeks to take life.

The Death Penalty Information Center reports that 122 persons have been released from death row since 1973 because of evidence of their innocence.  Recent media reports suggest that Texas death row prisoner Ruben Cantu was very likely innocent of the crime for which he was executed in 1993.  In Missouri, the St. Louis city prosecutor currently is conducting a posthumous investigation as to whether Larry Griffin was innocent of the crime for which he was executed in 1995.  These are the tragic consequences of a malfunctioning system.

Executing innocent people is not justice.  A legal system that takes life must first demonstrate that justice has been given.

Statement Re: Action By U.S. House of Representatives Financial Services Committee Supporting Amending the Gramm-Leach-Bliley Act, Title V

November 21, 2005 — The American Bar Association applauds the House Financial Services Committee for taking a decisive first step to address the improper application by federal agencies of the Gramm-Leach-Bliley Act to the attorney-client relationship. By endorsing Rep. Mark Kennedy’s amendment to exempt from the notice requirement individuals subject to an enforceable ethics code, the committee meets its goals of insuring that the public is informed and protected, while providing needed relief to consumers of legal services.

However, other concerns remain. As Rep. Judy Biggert pointed out in her statement to the committee, lawyers are not “financial institutions” and should not be treated as though they are under the Gramm-Leach-Bliley Act. Doing so creates conflicts for lawyers and increased expense for clients. It also attempts, inappropriately, to redefine the lawyer’s historic role in society. Congress never intended such a result.

Rep. Biggert has long worked with her colleague from across the aisle, Rep. Carolyn Maloney, to preserve the lawyer’s duty of confidentiality to clients from undue federal interference. We are heartened that the committee leadership has committed to work with them in this Congress to address the concerns remaining in the Gramm-Leach-Bliley privacy rules as they affect the attorney-client relationship. We applaud their leadership and look forward to continued progress on this issue of such importance to the public and society.

Michael Greco Letter to the Senate re: Opposing the Grahamn Amendment (#2515)

Statement Re: Denial of Habeas Corpus Rights for Guantanamo Detainees

November 14, 2005 — The U.S. Senate last week adopted with no hearings and with little debate Senator Lindsey Graham’s proposal to eliminate habeas corpus rights for Guantanamo detainees, denying them access to federal courts.  The American Bar Association urges the senators to reconsider and defeat that enormous change to our fundamental legal system.

Throughout our nation’s history, starting with the defense by lawyer, later president, John Adams of Massachusetts, of the British soldiers who fired on patriots in the Boston Massacre, it has been our commitment to basic principles of justice, even for the most unpopular among us, that has allowed us to maintain the high moral ground in the world, the most strategically important territory for us to occupy as we struggle with the enemies of freedom.

Our influence in the world is directly affected by our actions with respect to those we detain.  The prisoners in Guantanamo have been held there, largely incommunicado, for four years.  That fact alone offends our heritage of due process and fairness.  The writ of habeas corpus was developed precisely to prevent the prolonged detention of individuals without charge, by allowing those held to petition the federal courts.  To eliminate the right of habeas corpus would be shocking to our nation.

As Senator Graham himself has stated repeatedly, in the battle against terrorism we cannot allow ourselves to become like the enemy.  Adoption of his amendment would undermine the very principles that distinguish us from our enemies.

Read the ABA’s letter to the Senate.

Remembrance and Action on Veterans Day

This week, the United States launched a major military offensive in Fallujah to gain this important strategic stronghold in the war in Iraq. With time and good fortune, the men and women who are serving in this effort will return home, joining the growing cadre of service members whose bravery and sacrifices we honor—also this week—on Veterans Day.

This Veterans Day, the nation acknowledges the debt we owe to the men and women of our military, and celebrates their service and unflagging commitment to our country. Sadly, however, while they are the front-line defenders of our country in the global war on terror and frequently serve as the face of democracy in faraway lands, all too often they find that their legal rights have been diminished as a result of their military service.

Foremost among their legal worries are employment concerns. A recent informal survey done by the Reserve Officers Association of readers of its newsletter found that 53 percent of respondents were “very concerned” about their or a member of their family’s employment, including eligibility for promotion or reemployment by their current employer. In the same informal survey, 51 percent said they were not confident that their job is secure while they are fulfilling their service duties away from home. These difficulties oftentimes are omnipresent in the thoughts of active-duty soldiers, competing for their attention while they are fulfilling crucial and potentially deadly service-related responsibilities.

Today, amid the tolling of bells and other ceremonies in communities throughout the country, we must stop to ask ourselves whether we are doing all we can to repay their commitment. It is in this spirit that the American Bar Association Standing Committee on Legal Assistance to Military Personnel appointed a Working Group whose purpose was to frankly assess the legal safeguards provided to the thousands of reservists, National Guard and other service members who make up our nation’s military, and to recommend new or expanded legal protections where they are needed.

The Report of the Working Group identifies a number of critical areas where reform is needed, including family support, child custody, housing, tax laws, tuition benefits, and voting and employment rights. The Working Group found that service members too often encounter undue inequities and challenges to their and their families’ well-being, and that many of the problems stem from the frequent relocation that military service demands, as well as from the prolonged periods of absence that duty in the reserves and guard requires. These issues can become especially acute when they are related to employment and job security.

Although the Uniformed Services Employment and Reemployment Rights Act (USSERA) was enacted in 1994, after the large-scale mobilizations brought about by the Gulf War, and has been effective in helping to protect the jobs of service members, the Report found that many reservists are still at potential disadvantage for promotion or reemployment opportunities. This is especially the case for those in civil service, who miss out on civil service testing necessary for promotion, ultimately affecting their chances to improve the financial security of their families for several years; and for those whose earnings are significantly augmented by performance bonuses but who are effectively penalized by their absences while on active duty. Still others, despite legal safeguards, return from the war front to find that they no longer have a job at home.

The shape and face of our country’s military have undergone tremendous change in the past several years, as have the challenges and threats that those in the military must meet. It is incumbent on the legal and business communities, government and lawmakers, to work together to improve the legal safeguards for those who serve in the military. Our service members protect the freedom and security we, as Americans, hold dear. Our nation’s laws should do no less in protecting their and their families’ rights and peace of mind.

Samuel Alito Jr. Supreme Court Nomination

2005 Rule of Law Symposium: Event Descriptions

Speech Transcript: Remarks by Condoleezza Rice on the ABA Rule of Law Symposium

Speech Transcript: Orrin Hatch Re: The Future of Class Action Litigation in America

ABA Helps Lawyers Overcome Impediments To Public Service

CHICAGO, Nov. 8, 2005 – Most lawyers want to do more public service, as evidenced by the thousands volunteering to help victims of this year’s hurricanes.  Balancing work responsibilities with the desire to volunteer can be difficult, though, and lawyers are searching for ways to overcome impediments to pro bono and public service.

The American Bar Association’s new Pro Bono and Public Service Best Practices Resource Guide can help.  An online database of model pro bono and public service programs from all practice areas, the guide is a valuable tool for lawyers wanting to increase service opportunities.  The guide is available at www.abanet.org/renaissance.

“The demands of modern law practice can make it hard for lawyers to do the public service they want to do.  This guide helps them develop workplace pro bono and public service programs to overcome such stumbling blocks,” said ABA President Michael S. Greco.  “Because this year’s hurricanes left thousands of Gulf Coast residents with serious and lasting legal problems, it is more important than ever that we give lawyers the tools to volunteer their services to those who need them.”

The guide is a project of the ABA Commission on the Renaissance of Idealism in the Legal Profession.  Led by Honorary Co-chairs U.S. Supreme Court Justice Ruth Bader Ginsburg and Theodore C. Sorensen, special counsel to President John F. Kennedy, and chaired by Mark D. Agrast of Washington, D.C., Greco appointed the commission this year to foster workplace policies and practices that enable lawyers to do more pro bono and public service.

The guide is a clearinghouse of information on successful pro bono and public service programs.  Lawyers interested in beginning or improving such initiatives at their workplace may use best practices in the guide as models, drawing on other lawyers’ ideas and experiences.  The guide may be searched online by keyword and by three categories: initiative type, such as strategic planning or resource development; practice setting, such as corporate counsel or law firms; and partnership type, such as projects with bar associations or law schools.

In addition, lawyers who have implemented effective pro bono programs and public service projects are encouraged to submit them online for inclusion in the guide so their good ideas may benefit others in the profession and people in need of legal services.  Currently, the guide contains more than 160 best practices from all practice areas.

Despite the hard work of pro bono and legal aid lawyers, most poor people cannot obtain a lawyer when they need one.  The most recent ABA study on access to legal services found that 80 percent of the legal needs of the poor go unmet annually, and a Legal Services Corporation study released this year, “Closing the Justice Gap,” yielded similar results.  Devastation wrought by hurricanes this year – the legal reverberations of which will be felt for years – compounded this severe need for greater access to legal services by the poor.  The best practices guide is an effort to mitigate this need by freeing lawyers to do more pro bono activity.

Aside from efforts to increase pro bono work generally, the ABA has numerous initiatives to help people affected by the hurricanes, including legal assistance hotlines created jointly with FEMA, mobilization of pro bono lawyers to provide legal services, resources for lawyers providing legal assistance to people in need and support for lawyers themselves displaced by the storms.

The American Bar Association Commission on the Renaissance of Idealism in the Legal Profession was appointed this year by ABA President Michael S. Greco to develop policies and practices that help lawyers strike a better balance in their lives and law practices, allowing them to perform public service, volunteer legal assistance to those in need, help improve their communities and find greater fulfillment in their legal careers.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.