The ABA and Criminal Justice Issues

August 1, 1997

INTRODUCTION

In 1996, the Federalist Society for Law and Public Policy Studies launched fifteen legal practice groups, among them the Criminal Law and Procedure Practice Group. The group has openly welcomed practitioners in the criminal law, including federal, state and local prosecutors and defense attorneys.

In this report, the Criminal Law and Procedure Practice Group has taken the opportunity to follow up on the ABA's own report, issued by the Advisory Committee on the Prosecution Function on January 8, 1992. That report concluded there was a striking pattern of ABA activities and positions that regularly favored the criminal defense position in litigation and legislation, and that the pro-criminal defense orientation of the ABA was in part responsible for prosecutors not joining the ABA or dropping their membership. This report provides facts respecting more recent ABA activity, such as the ABA's active opposition to the habeas corpus provisions of the Antiterrorism and Effective Death Penalty Act of 1996 and the adoption by the House of Delegates in February 1997 of a resolution calling for a moratorium on the death penalty. The moratorium resolution calls upon all jurisdictions that impose the death penalty to first comply with certain ABA policies, many of which stand in direct conflict with the new federal law. From these facts, readers may judge for themselves whether the conclusions of the ABA's Prosecution Function Committee's 1992 report still hold true today.

he Executive Committee of the Criminal Law and Procedure Practice Group initiated this report in early 1997 as a service to the Federalist Society and ABA members alike. Special recognition is due the Practice Group members who helped prepare this report, and in particular Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation, Sacramento, California; Thomas Gede, Special Assistant Attorney General, California Attorney General's Office, Sacramento, California; and James Schliessman, Assistant Commonwealth's Attorney, Hampton, Virginia. This report is solely the private work of the members who prepared it. It does not necessarily represent the interests, concerns, or views of the government agencies with which the members are associated.
The Board of Advisors of the Federalist Society's Criminal Law and Procedure Practice Group is pleased to present this report, this 3rd day of August, 1997, in San Francisco, California.

 

BOARD OF ADVISORS FOR THE FEDERALIST SOCIETY'S CRIMINAL LAW & PROCEDURE PRACTICE GROUP

Edwin Meese
Former U.S. Attorney General

Alan G. Lance
Attorney General of Idaho


Gale A. Norton
Attorney General of Colorado


Richard L. Thornburgh
Former U.S. Attorney General


Daniel E. Lungren
Attorney General of California

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EXECUTIVE COMMITTEE OF CRIMINAL LAW &
PROCEDURE PRACTICE GROUP


Joe D. Whitley
Alston & Byrd


Mary Beth Buchanan
Office of the U.S. Attorney, Pittsburgh


John Malcolm
Law Office of John Malcolm


Thomas F. Gede
Office of the Attorney General, California


William Braniff
Law Office of William Braniff


Kent Scheidegger
Criminal Justice Legal Foundation

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Chapter 1.

ABA Positions on Criminal Justice Issues
The 1992 report of the ABA's Advisory Committee on the Prosecution Function concluded that the ABA's policies on criminal justice issues "routinely favor criminal defense positions." Those positions are reflected in both testimony before Congress and amicus curiae briefs in the Supreme Court. A consistent defense orientation in ABA positions, according to the 1992 report, constitutes a major disincentive for prosecutors to be members of the ABA. People who believe that an organization is actively fighting against the cause of justice, as they perceive it, cannot be expected to support that organization with time or money.

ABA Positions Before Congress
To judge the currency of the 1992 report's findings and conclusions, we examined the ABA's positions identified as "legislative priorities" in the January issues of the ABA Washington Letter for 1995, 1996, and 1997. Each January issue summarizes the activity of the previous year. The table at the end of this chapter summarizes the ABA position and indicates whether it is a pro-prosecution, pro-defense, or neutral position. We made this judgment based on whether the issue is one on which criminal law practitioners are divided largely along prosecution/defense lines.

There are some issues which do not divide cleanly on prosecution/defense lines. Gun control is the most prominent of these. Although the issue is related to crime, lawyers involved in criminal justice are likely to take their positions on this issue based on beliefs independent of their roles as prosecutors or defense lawyers. Drug education and treatment is also a neutral issue in this regard. Aside from these two neutral issues, there are four criminal justice issues identified by the ABA as its legislative priorities.

1. Exclusionary Rule. Few issues bring out the divisions of opinion on criminal procedure as sharply as does the rule excluding evidence on the basis of how it was obtained, without regard to its reliability. It has been denounced throughout the twentieth century by its critics, including such giants of the law as Justice Benjamin Cardozo and Dean John Henry Wigmore. "The criminal is to go free because the constable has blundered." People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). "Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else." 8 J. Wigmore, Evidence § 2184a, p. 31, n. 1 (McNaughton rev. 1961). The rule's supporters, including Professor Wayne LaFave, contend that there are no other effective means of enforcing the Fourth Amendment. See W. LaFave, Search and Seizure § 1.2(e), pp. 36-38 (3d ed. 1996).

Two proposals on the exclusionary rule have received significant attention in Congress. One proposal would exempt from the rule evidence which was obtained in the good faith belief that the search or seizure was legal, thereby limiting the rule to those cases where the violation is most flagrant and the deterrent effect will be greatest. The second proposal would replace the rule with a civil damages mechanism.

The ABA comes down squarely on the defense side of this debate, opposing both proposals. This issue appears to be the ABA's top criminal law priority. When presenting testimony on a large omnibus crime bill, the ABA singled out exclusionary rule reform as the topic for its presentation. See Taking Back Our Streets Act of 1995, Hearings before the Subcommittee on Crime, House Judiciary Committee, January 19 and 20, 1995, 104th Cong., 1st Sess., Serial No. 99, pp. 369-386; see also The Jury and the Search for Truth: The Case Against Excluding Relevant Evidence at Trial, Hearings before the Senate Judiciary Committee, March 7, 1995, 104th Cong., 1st Sess., Serial No. J-104-10, pp. 100-105. The effort has been successful so far. Congress has not passed a reform in this area.

2. Habeas Corpus Reform. Habeas corpus, originally a mechanism for obtaining the release of persons imprisoned illegally without trial or wrongly denied bail, has become in the twentieth century a second appeal (and sometimes a third, fourth, fifth, or sixth) from a criminal conviction. While there are many significant issues regarding habeas corpus, the sharpest division has come over the practice of federal courts, since 1953, to reconsider de novo questions of federal constitutional law already considered by the state courts on appeal or state collateral review. In effect, this practice has given the federal district courts and courts of appeals a de facto appellate jurisdiction over state supreme courts, as if the highest court of a state were a "lower" court than the lower federal courts.

Supporters of de novo review on habeas maintain that it is an essential safeguard, due to a deep distrust of state courts. See, e.g., Habeas Corpus Issues, Hearings before the Subcommittee on Crime, House Judiciary Committee, May 22, June 27, and July 17, 1991, 102d Cong., 1st Sess., Serial No. 39, p. 386 (statement of David Bruck). Opponents of de novo review note that the superiority of federal courts in reaching the "right" result is far from certain. State court decisions reaching results outside the bounds of reasonable debate among jurists are rare. See K. Scheidegger, Rethinking Habeas Corpus 34 (1989), reprinted in Habeas Corpus Issues, supra, at 249. A federal court may "find" constitutional error in a state judgment and overturn it, only to have the Supreme Court determine years later in another case that the state court's view of the law was correct all along. See, e.g., Dunn v. Simmons, 877 F.2d 1275, 1278 (6th Cir. 1989) (holding that a particular Kentucky procedure violates "federal standards"); Parke v. Raley, 506 U.S. 20, 28 (1992) (holding that this procedure "easily passes constitutional muster").

Again, the ABA came down squarely on the defense side of this debate. It vigorously objected to any change in the de novo review rule. See Habeas Corpus Issues, supra, at 448; S. Hrg. 104-428, Federal Habeas Corpus Reform: Eliminating Prisoners' Abuse of the Judicial Process, Hearing before the Senate Judiciary Committee, March 28, 1995, 104th Cong., 1st Sess., Serial No. J-104-15, pp. 195-196. This position was identical to that of the National Association of Criminal Defense Lawyers. Id., at 109.

It may be instructive to examine the positions taken by the ABA as it supported de novo habeas review in legislation before the 101st and 102d Congresses and opposed the legislation that restricted it in the 104th Congress. In 1991, John J. Curtin and James S. Liebman testified on behalf of the ABA before the Senate Judiciary Committee, urging the Senate to adopt the 1989 ABA Task Force Report on Death Penalty Habeas, reprinted in 40 Am. U. L. Rev. 1 (1990). At issue before the Committee were various habeas reform proposals. Notwithstanding the ABA testimony, the full Senate adopted the Hatch Amendment by a vote of 58 to 40. See 137 Cong. Rec. 8661 (daily ed. June 26, 1991). Of significance here was that the Hatch Amendment, like a previous amendment on this issue proposed by Representative Henry Hyde and passed by the House of Representatives in the 101st Congress, by a vote of 285 to 146, 136 Cong. Rec. H 8881 (daily ed. Oct. 4, 1990), incorporated the recommendations of the Powell Committee Report, A Report and Proposal of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases for the Judicial Conference of the United States (Aug. 23, 1989). That committee was chaired by former U.S. Supreme Court Justice Lewis Powell, who, while personally opposed to the death penalty, supported various reform measures that would substantially limit repeated petitions and the raising of new issues on federal habeas corpus.

The Powell Committee Report also would have left intact the Supreme Court rule articulated in Teague v. Lane, 489 U.S. 288 (1989), that bars retroactive application of "new rules" on collateral review, subject to two narrow exceptions. The purpose of the doctrine was to ensure that state court convictions comply with federal law in existence at the time the conviction became final, and not provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine. The conference reports that resulted in 1990 and 1991 rejected the Powell Committee recommendations, and ultimately, they failed passage.

In 1993, a compromise effort arose in which Senator Joseph Biden (D-Del.) spearheaded an attempt to pass a proposal that, while appearing to codify the rule in Teague, actually undermined it by redefining its exceptions. While one exception in Teague allowed the application of "watershed rules of criminal procedure," the Biden proposal would have allowed any new rule which is shown to "affect the fundamental fairness, accuracy and truth-determining process of the criminal proceeding." See 1993 proposal, §204 (proposed §2256(b)(ii)). The proposal also contained a direct exception to Teague by codifying de novo review of any state court decision on the merits once a "new rule" has been identified which may be applied retroactively. It also re-defined "new rule" so that fewer new rules would be barred from retroactive applications--overturning definitions in Graham v. Collins, 113 S.Ct. 892, 897-898 (1993), Sawyer v. Smith, 497 U.S. 227, 236-237 (1990), and Butler v. McKellar, 494 U.S. 407, 412 (1990). The ABA reported, resolved and testified against the existing Supreme Court definitions, against proposals that codified them, and for proposals that overturned them. The position matched that of the criminal defense bar.

The matter came to a head when, in the 104th Congress, various proposals made progress in both Houses of the Congress: S. 3 would have barred federal courts from granting habeas relief on the basis of a federal constitutional claim if the claim was "fully and fairly" adjudicated in state court. S. 623, while not using the "full and fair" standard, barred relief if the constitutional claim--indeed any questions of law, fact or mixed question of law and fact--was adjudicated in state court, unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as established by the Supreme Court of the United States." H.R. 729 passed out of the full House of Representatives in February 1995 and also provided restrictions on de novo federal court review essentially similar to those in S. 623.

The ABA presented views, as noted above, taking issue with the restrictions on de novo review, consistent with the ABA policies and views concerning the legislation in the 101st and 102d Congresses. S. Hrg. 104-428, supra, at 195-196. The ABA, joining the National Association of Criminal Defense Lawyers, opined that the restrictions, and narrow exception, to de novo review would increase the "second-guessing" of state courts that federal courts would have to engage in, presumably to see if the narrow exception applies. S. Hrg. 104-428, supra, at 196. Presumably, the ABA was of the view that there was an acceptable level of "second-guessing" under the current law. Instead, the ABA rang the bell that the legislative measures represented a threat to the independence of the federal judiciary.

The views of the ABA and the criminal defense bar were rejected by the United States Congress when it adopted the Specter-Hatch habeas corpus proposal of S. 623 into the Senate antiterrorism legislation in S. 735. On June 7, 1995, the Senate rejected by a vote of 53 to 46 Senator Biden's motion to strike the deference standard from S. 623. Those provisions survived in the adopted conference report on S. 735, and were signed into law by President Clinton on April 24, 1996. This measure represents the most comprehensive and sweeping reform of habeas corpus law since its enactment in 1867, as amended in 1948. See T. Gede, Major Habeas Reform Package Becomes Law, Criminal Law and Procedure (Practice Group, Federalist Society of Law & Public Policy Studies) News, Fall 1996, p. 3 et seq.

The final "deference" standard, adopted into law over ABA objections, mandates that the federal courts, in reviewing state court judgments of convictions, defer to a state court ruling on the merits of any habeas claim (including questions of fact, law and mixed questions), unless the state court adjudication of the claim

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [¶] [ ] resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. §104 of the Act; new 28 U.S.C. §2254(d)(1), (2).

The newly-enacted legislation also rejected the positions of the ABA and the criminal defense bar on the ability of a habeas petition to file a second or successive petition and the standards of proof that should apply. Given the opposition of the ABA to the 1996 law, it can be expected that the ABA will urge repeal or weakening of the law in its future policies and positions.

3. "Racial Justice Act." This proposal arose in response to the decision of the Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987). That case involved a challenge to capital punishment in Georgia based on a study by Dr. David Baldus purporting to show that murders of white victims resulted in death sentences more often than supposedly similar crimes against black victims. After an extensive trial, hearing experts from both sides, and an exhaustive analysis, the federal district judge determined that Baldus' data did not support his conclusion. "The best models which Baldus was able to devise which account to any significant degree for the nonracial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either" the prosecution's decision to seek the death penalty or the jury's decision to impose it. See McCleskey v. Zant, 580 F.Supp. 338, 368 (N.D. Ga. 1984). Despite this holding, the Court of Appeals and the Supreme Court assumed for the sake of argument that McCleskey had proved his case, and this assumption was widely assumed to be the truth in the resulting public uproar.

A bill called the "Racial Justice Act" would have created an "inference that race is the basis of a death sentence" merely upon the introduction of "valid evidence" of an overall racial disparity in the jurisdiction. The defendant would not actually have to prove, by any standard, that the disparity actually existed. While the evidence had to "include comparisons of similar cases," it was not required to prove that a difference in number was actually the result of race and not some other factors. This simple presentation of evidence would be sufficient to shut down a state's entire death penalty until the state shouldered the burden of proving the negative. H.R. 4017, 103d Cong., § 2. The act would have applied retroactively to all pending cases. Id. § 3. Proof in social science becomes increasingly difficult as the number of variables increases. Since the Supreme Court has held that juries must be permitted to consider an infinite number of variables, see Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality), definitive proof is probably impossible.

The ABA supported the "Racial Justice Act." See Harris, Report Accompanying Recommendation 107, p. 14 (1997). In its Washington Letter, the ABA reported its position to its members as, "Supports effective remedies to eliminate racial discrimination in capital sentencing." Few would disagree with that position as stated. The real issue was whether the "Racial Justice Act" really was an effective remedy, or simply a covert effort to abolish capital punishment by shifting an impossible burden of proof to the state upon the introduction of the flimsiest of evidence.

4. Sentencing. In reaction to a perception that some violent criminals and drug dealers were receiving overly lenient sentences, Congress has enacted mandatory minimum sentences for certain offenses. Many of these minimums are controversial. For example, the Sentencing Commission is unanimous that the 100/1 ratio of powder to crack cocaine for sentencing purposes is out of line, although the Commission is divided as to what the ratio should be. The ABA position, however, is to flatly oppose all mandatory minimum sentences.

ABA Positions Before the Supreme Court
In addition to lobbying Congress, the ABA also makes its positions known at the highest levels by filing amicus curiae briefs in the Supreme Court. Since 1992, the ABA has filed in five criminal and habeas corpus cases. In each of the five, the ABA's brief was submitted in support of the defendant or habeas petitioner. The ABA filed no briefs in support of the government in these cases. 

  1. Wright v. West, 505 U.S. 277 (1992). This case involved a subset of the issue subsequently resolved by Congress in the legislative habeas corpus reform, discussed above. That is, "should a federal court give deference to the state court's application of law to the specific facts of the petitioner's case or should it review the state court's determination de novo." The ABA supported de novo review, as it did before Congress.
  2. Withrow v. Williams, 507 U.S. 680 (1993). This case involved the even narrower question of whether the rule of Stone v. Powell, 428 U. S. 465 (1976), which precludes federal re-review of Fourth Amendment exclusionary rule claims already fully and fairly litigated in state courts, should be extended to claims that a confession, even though voluntary, was not taken in compliance with the Miranda rule. That is, the state's position was that federal courts would continue to decide de novo whether the confession was, in fact, voluntary, but would not reconsider technical Miranda compliance already decided in state court. Again, the ABA supported de novo relitigation of every issue.
  3. United States v. Granderson, 511 U.S. 39 (1994). This case involved an aspect of the mandatory minimum sentencing controversy. Congress decided that probationers who use drugs must have their probation revoked and be sentenced to at least one third of the "original sentence." The statute was ambiguous, however, as to whether the "original sentence" was the term of probation or the Guidelines sentence the defendant would have received had he not been granted probation. Solicitor General Days argued that it was the former. The ABA supported the defendant's position that it was the latter, a considerably shorter period.
  4. McFarland v. Scott, 512 U.S. 849 (1994) (named McFarland v. Collins at the time the ABA filed its brief). This case involved the question of whether a court could issue an order, specifically a stay of execution, prior to the filing of the first pleading, the petition for a writ of habeas corpus. McFarland's death sentence was affirmed by the Texas Court of Criminal Appeals on September 23, 1992. Over a year later, on October 25, 1993, he requested appointment of counsel and a stay of execution from a federal district court, but did not file any pleading with that court of the kind that would normally initiate an action. The district court decided it had no jurisdiction to issue an order with no action before it. The ABA supported McFarland's position that the court did have jurisdiction.
  5. Ogbomon v. United States, 136 L.Ed.2d 642, 117 S.Ct. 725 (1997) (dismissing certiorari as improvidently granted). This is an odd case where the prosecution and defense positions are more blurred than in the others. Ogbomon, an alien, was convicted and deported. Then he reentered the United States and was convicted of another crime. The judge ordered him deported as a condition of supervised release, as 18 U.S.C. § 3583(d) appears, on its face, to authorize. Ogbomon argued that deportation could only be ordered through the procedures under the Immigration and Nationality Act. The government had supported deportation under 18 U.S.C. § 3583(d) in another case, but now switched sides and agreed with Ogbomon. The Supreme Court appointed an amicus to argue in support of the judgment below. The ABA's brief discussed a different issue, one apparently not before the Court, regarding the adequacy of procedure of deportations under section 3583(d).

Putting aside the odd Ogbomon case and the ABA's off-topic brief in it, we see that the ABA entered four criminal and habeas cases with a clear prosecution/defense division. In each case, the ABA supported the defense position.

ABA Legislative Priorities 1994-1996
This is a list of the American Bar Association's legislative priorities in the area of criminal justice for the years 1994 to 1996, as listed in the ABA Washington Letter. For each issue, the ABA position is either quoted or summarized from the Washington Letter or determined from testimony or prepared statements submitted by the ABA to Congress. In addition, there is an indication of whether the position is prosecution-oriented, defense-oriented, or neutral. The position is rated as "prosecution" or "defense" if it is an issue on which criminal law practitioners are divided largely along prosecution-defense lines. For issue with no such clear division, the ABA position is indicated as "neutral."

1994: 

  • Drug Education and Treatment (HR 4606): Favors increased funding.
    Neutral
  • Exclusionary Rule (S 8 & S 77): "Supports retention of exclusionary rule and opposes restrictions on its application."
    Defense
  • Gun Control (HR 3355 & HR 1025): Favors assault weapon ban, waiting period, banning possession of handguns by juveniles.
    Neutral
  • Habeas Corpus (HR 3355): Opposes any change to the rule of de novo review of decisions of state courts by the lower federal courts.
    Defense
  • Racial Justice Act (HR 3355): Favors this proposal, which would impose on the state the burden of disproving discriminatory enforcement of the death penalty, upon the defendant's mere introduction of statistical evidence, with no requirement that the evidence satisfy any burden of proof.Defense
  • Sentencing (HR 3355): Opposes mandatory minimum sentences, even for repeated violent offenders.
    Defense

1995: 

  • Exclusionary Rule (S 3): "Supports retention of exclusionary rule and opposes restrictions on its application."
    Defense
  • Gun Control (HR 1488): Opposes repeal of assault weapons ban.
    Neutral
  • Habeas Corpus (S 3, S 623, S 735, HR 2703, HR 2768, HR 729): Opposes any change to the rule of de novo review of decisions of state courts by the lower federal courts. The ABA's position was presented by Professor Larry Yackle, a well-known advocate for the defense side in habeas corpus, and its position on the critical reform was identical to that of the National Association of Criminal Defense Lawyers. See Senate Hearing 104-428, pp. 109 & 191.
    Defense
  • Sentencing (S 3 & HR 3): Opposes mandatory minimum sentences for violent offenses with firearms. Defense

1996: 

  • Attorney Ethical Code (S 3 & HR 3386): Supports making federal prosecutors performing their duties in federal court subject to state rules, even when contrary to policy of the U.S. Attorney General.
    Defense
  • Exclusionary Rule (S 3 & HR 666): "Supports retention of exclusionary rule and opposes restrictions on its application."
    Defense
  • Gun Control (HR 125, HR 1488, HR 3610): "Supports a ban on civilian possession, sale and importation of assault weapons." Supports HR 3610, which "bans individuals convicted of misdemeanor crimes of family violence from purchasing or possessing firearms."
    Neutral
  • Habeas Corpus (S 735): See item 3 in 1995.
    Defense
  • Sentencing (S 3 & HR 3): Opposes mandatory minimum sentences for violent offenses with firearms.
    Defense


Chapter 2.
Publications

Publications are a major area of activity for an organization such as the ABA. Indeed, in its promotional materials the ABA often notes publications as a selling point for membership. Publications for a neutral umbrella organization should themselves be neutral overall in content and tone. That is not to say that strong views cannot be expressed, but that over the long term there should be some semblance of balance in the publications. In the past, many prosecutors have felt that balance was missing from ABA publications and that by paying dues to the ABA they were, in effect, subsidizing publications heavily tilted toward views they oppose.

To assess this impression, we examined Criminal Justice, the magazine of the ABA Criminal Justice Section, taking the two most recent complete volumes of that publication, volumes 10 and 11. The purpose of the examination was to make an objective, quantifiable determination of editorial "tilt." To this end, we looked at the table of contents of each issue to see which articles appeared, by their titles, to possibly be taking a position on a criminal justice issue. Then we examined each article to see if it advocated or opposed a change in the law and, if so, whether the position was a clearly defense- or prosecution-oriented position. The results of this examination follow.

Spring 1995, Volume 10, Number 1

Marks, Taking Stock of the Inventory Search: Has the exception swallowed the rule?
Defense: This article takes the position that Supreme Court case law approving inventory searches of vehicles are contrary to the Fourth Amendment and should be overruled. The tone of the article is conveyed by its closing paragraph. "The inventory search 'exception' has swallowed the rule--of warrants and probable cause. But the constitutional text remains, waiting for the day when more literate souls will use the rule of the Fourth Amendment to swallow such a pernicious 'exception.' "

Bucy, Litigating Health Care Fraud
Neutral: This article discusses a number of evidentiary issues in health care fraud. Its main criticism of existing case law and proposal for change deals with summaries under Federal Rule of Evidence 1006, an issue which applies equally to both sides.

Silbert, Growing Government Threats to the Attorney-Client Relationship: When state and federal ethics collide
Neutral: This article discusses a number of points of friction between federal prosecutors and the defense bar and notes the perspectives of both sides. Although the defense perspective is emphasized, we rate this one as neutral.

Summer 1995, Volume 10, Number 2

Chavez, Statutes of Limitations and the Right to a Fair Trial: When is a crime complete?
Defense: This article takes the position that the federal courts of appeals are stretching statutes of limitation to avoid time-barring prosecutions and that the Supreme Court needs to reverse this trend.

Krisberg, Currie, and Onek, What Works With Juvenile Offenders? A review of "graduated sanction" programs
Defense: This article opposes the trend toward greater prosecution of violent juvenile offenders in adult court.

Shepherd, The Rush to Waive Children to Adult Court
Defense: Same position as the above article.

No author, Oppose Stop Turning Out Prisoners Act
Defense: "This report is drawn from a letter sent by the ABA's Criminal Justice Section on behalf of the American Bar Association to the U.S. Senate on February 17, 1995." It opposes bills which contained the reforms eventually enacted as the Prison Litigation Reform Act, P.L. 104-134.

Fall 1995, Volume 10, Number 3

Zorza, Mandatory Arrest for Domestic Violence: Why it may prove the best first step in curbing repeat abuse
Prosecution: The title states the position. While many police officers would resent the interference with their discretion, this is certainly not a pro-defendant position. Although arguably neutral, we score it as pro-prosecution.

Krakoff and Wagner, Advising Clients in the Post-Weitzenhoff Era: The courts expand scope of environmental crimes
Defense: This article opposes the lowering of the mens rea for environmental crimes in United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).

Bollinger, Defending Dual Prosecutions: Learning How to Draw the Line
Defense: This is primarily a practice article for defense lawyers whose clients face prosecution in both state and federal court for the same conduct. However, the conclusion of the article does support the ABA position of "barring subsequent prosecutions across the board," a rule which would have barred the Rodney King retrial, for example.

Shein, Sentencing Manipulation or Entrapment: Courts are wary, but admit the possibility
Defense: The author argues that when the government has control over a factor that goes into sentencing (e.g., quantity of drugs in a "reverse sting" operation), the trial court should be able to depart from the Sentencing Guidelines to prevent "entrapment."

Winter 1996, Volume 10, Number 4

Hochberg, Peremptory Challenge: An American Relic
Neutral: The author endorses Justice Marshall's suggestion in Batson v. Kentucky, 476 U.S. 79, 102 (1986) that peremptory challenges be abolished. Because both the prosecution and defense have and use these challenges, this position is scored as neutral.

Beyer, Juvenile Boot Camps Don't Make Sense
Defense: "Since 1980, younger and younger teenagers have been treated as adult criminals. Boot camps for juveniles are the latest in this dangerous trend and will be as ineffective as wholesale incarceration of youth in adult facilities." Although this is a corrections issue rather than a strictly criminal law or procedure issue, this article is scored as taking a defense-oriented position.

Spring 1996, Volume 11, Number 1

Marks, Mission Impossible? Rescuing the Fourth Amendment from the war on drugs
Defense: This article denounces Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995). As with the same author's article of a year earlier, the tone is worthy of note. "To merit the faith of the founders, we must replace our contemporary mockery of the Fourth Amendment --born of a myopic jurisprudence of efficiency--with the original version of the Fourth Amendment and its promise to secure for each of us an inviolable sphere of physical and emotional integrity upon which even the most powerful agent of government may not intrude." Again, the Supreme Court Justices who disagree with the author do not simply disagree. They are "myopic" and have made a "mockery of the Fourth Amendment."

Spring 1996, Volume 11, Number 2

Reno, Fighting Youth Violence, The future is now
Prosecution: The Attorney General describes her approach to youth violence, one component of which is adult prosecution of hardened, violent youth.

Gorelick: Ethics, Contacts with Represented Persons
Prosecution: The Deputy Attorney General defends the department's position.

Summer 1996, Volume 11, Number 3

Rudin, Megan's Law: Can it stop sexual predators--and at what cost to constitutional rights?
Defense: This article is sharply critical of "Megan's Law" statutes, which notify the public of convicted sex offenders, on numerous grounds.

Winter 1997, Volume 11, Number 4

Taylor, Victims' Rights & the Constitution: Proceed with Caution
Defense: The section chair opposes the Victims' Rights Amendment.

Farnham, Jury Nullification: History proves it's not a new idea.
Defense: Although the author is a prosecutor, he supports instructing juries on nullification, a change which can only benefit the defense.

Johnston, Paying the Witness: Why is it OK for the prosecution, but not the defense?
Defense: The author contends that federal prosecutors routinely violate 18 U.S.C § 201(c)(2), which forbids paying for testimony. The article begins with a letter the author sent to the Department of Justice on the subject, but confusing it with the controversial "Thornburgh Memorandum" regarding contact with represented persons. The Department's response understandably addresses the latter, unrelated issue.

Objectively, then, there were eleven articles advocating the defense position on criminal justice issues and only three advocating prosecution positions. Two of the three were statements of high government officials regarding department policies, and the third was more of a feminist position than a prosecution position. Articles by working prosecutors advocating prosecution positions are noticeably absent, while articles by working defense lawyers advocating defense positions are common. While reviewing the publication, we also noticed that the "practice tips" type of articles were uniformly oriented toward the defense.

Chapter 3.

The Case of the 1997 Death Penalty Moratorium Resolution
A. Background. On February 3, 1997, the American Bar Association House of Delegates passed, by a vote of 280 to 119, a resolution calling upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction "implements policies and procedures" that are consistent with long-standing ABA policies "intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed." Prior to the vote, it was reported that the moratorium was directed at, and applied to, all states and jurisdictions that impose capital punishment.

The resolution was not carried by the ABA's Criminal Justice Section (CJS), but instead was offered by the ABA's Section of Individual Rights and Responsibilities (IR&R). In fact, the CJS Council voted not to support the resolution following several re-writings of the IR&R draft. It was opposed by the then-ABA President, the federal Department of Justice, and state and local prosecutors who specifically rejected the report's suggestion that federal and state criminal justice systems do not follow existing ABA resolutions calling for due process and competent counsel in death penalty cases. While the CJS Council voted not to endorse the resolution, the four of the six members of the CJS Executive Committee voted that they were "uninstructed," and thus, remained mute on the issue before the House of Delegates. Apparently, the ABA's criminal justice representatives were prevented from playing a meaningful role in the formulation of a criminal justice policy statement, as the IR&R section and the Section of Litigation moved ahead without CJS endorsement. The story of how the resolution came to be considered and passed may shed some light on how the ABA policy-making apparatus deals with and resolves criminal justice issues.

B. Chronology. The moratorium resolution was first presented to CJS in April 1996, when IR&R requested CJS consider supporting it. It then read:

RESOLVED, That the American Bar Association urges the federal, state and territorial governments to institute a moratorium on the imposition and enforcement of the death penalty, to continue in effect until those governments implement policies and procedures that, consistent with long standing ABA policies, will (1) ensure that death penalty cases are administered fairly, impartially and in accordance with due process, and (2) minimize the risk that innocent persons might be executed.

After vigorous debate, CJS agreed to co-sponsor the resolution with a revision designed to ensure that the resolution was not stating a position on the death penalty per se, as follows:

RESOLVED, That the American Bar Association has not and does not take a position on the advisability of the death penalty, however, at a minimum, those jurisdictions that use the death penalty should ensure that they implement policies and procedures that, consistent with long standing ABA policies, will (1) ensure that death penalty cases are administered fairly, impartially and in accordance with due process, and (2) minimize the risk that innocent persons may be executed, and until they do so there should be a moratorium on the imposition and enforcement of the death penalty.

While the revised language was accepted by IR&R, the ABA Rules and Calendar Committee offered a subsequent revision, also accepted by IR&R, that incorporated references to existing ABA policies. The Rules and Calendar Committee revision provided:

RESOLVED, That the American Bar Association calls upon each jurisdiction that uses capital punishment to observe a moratorium on the implementation of the death penalty until the jurisdiction implements policies and procedures that will (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process and (2) minimize the risk that innocent persons may be executed.

FURTHER RESOLVED, That the American Bar Association urges that the policies and procedures implemented by each jurisdiction be consistent with long-standing American Bar Association policies concerning (1) The ABA's "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" (adopted Feb. 1989) and Association policies intended to encourage competency of counsel in capital cases (adopted Feb. 1979, Feb. 1988, Feb. 1990); (2) streamlining and expediting state post-conviction and federal habeas procedures that preserve federal court authority and responsibility to exercise independent judgment on the merits of constitutional claims (adopted Aug. 1982, Feb. 1990); (3) eliminating discrimination in capital sentencing on the basis of race of either the victim or the defendant (adopted Aug. 1988, Aug. 1991); and (4) preventing execution of mentally retarded persons (adopted Aug. 1989) and persons who were under the age of 18 at the time of their offenses (adopted Aug. 1983).

FURTHER RESOLVED, That in adopting the recommendation, apart from existing Association policies relating to offenders who are mentally retarded or under the age of 18 at the time of the commission of the offenses, the Association takes no position on the death penalty.

Given the Rules and Calendar Committee revisions, IR&R asked CJS to confirm its endorsement of the resolution, and despite considerable controversy, the CJS Executive Committee voted to maintain CJS co-sponsorship. At the August 1996 ABA Annual Meeting, the CJS Council voted to withdraw support of the revised resolution. At the same time, IR&R withdrew the resolution from consideration by the full House of Delegates. The CJS Council agreed to fully consider the issue at its November 1996 Council meeting.

Notwithstanding the August 1996 CJS vote to withdraw support and the IR&R withdrawal of the resolution from the House of Delegates, the proposed resolution surfaced with yet another, in what became the final, revision. Prior to the November CJS Council meeting, the ABA Section of Litigation helped re-write the resolution, as follows:

RESOLVED, That the American Bar Association calls upon each jurisdiction that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with the following long-standing American Bar Association policies intended to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed:

(1) Implementing ABA "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases" (adopted Feb. 1989) and Association policies intended to encourage competency of counsel in capital cases (adopted Feb. 1979, Feb. 1988, Feb. 1990, August 1996);

(2) Preserving, enhancing and streamlining state and federal court's authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings (adopted Aug. 1982, Feb. 1990);

(3) Striving to eliminate discrimination in capital sentencing on the basis of race of either the victim or the defendant (adopted Aug. 1988, Aug. 1991); and

(4) Preventing execution of mentally retarded persons (adopted Aug. 1989) and persons who were under the age of 18 at the time of their offenses (adopted Aug. 1983).

FURTHER RESOLVED, That in adopting this recommendation, apart from existing Association policies relating to offenders who are mentally retarded or under the age of 18 at the time of the commission of the offenses, the Association takes no position on the death penalty.

IR&R presented this revision to the CJS Council on November 23, 1996, in Alexandria, Virginia. There was vigorous discussion on whether the resolution would attempt to bar capital punishment in those cases where the defendant had been treated fairly, but where the jurisdiction did not have appropriate legislation addressing every policy referenced by the IR&R resolution, even on those matters irrelevant to the immediate case. Additionally, some suggested that the call for a moratorium effectively served as a bar to the imposition of capital punishment until certain provisions of the 1996 habeas corpus reform act were repealed, where that federal legislation was inconsistent with the "long-standing" policies of the ABA. Idaho Attorney General Alan Lance, Representative to the Criminal Justice Section Council from the National Association of Attorneys General (NAAG) formally expressed NAAG's opposition to the resolution. The CJS Council then voted to convey to IR&R that CJS would not support the resolution in its current form and that it was willing to create a multi-disciplinary committee comprised of a prosecutor, a defense attorney, and a judge/law professor to work with IR&R to craft appropriate language for a resolution. Apparently, IR&R responded that it was moving ahead without CJS endorsement and that it planned to present at the February 1997 ABA Midyear Meeting the proposed resolution in the form presented to the CJS Council at the November 1996 meeting.

At the February 1997 ABA Midyear Meeting, a majority of CJS officers, which was four of the six members of the CJS Executive Committee, voted that they were "uninstructed" by the November 1996 CJS Council vote. Accordingly, they decided not to voice CJS concerns with the death penalty resolution on the floor of the House of Delegates unless directly asked. The resolution was subsequently adopted as ABA policy by the House of Delegates on a vote of 280 to 119 at the Midyear Meeting on February 3, 1997.

C. The Meaning of the ABA Moratorium Policy: The Battle Over Habeas Corpus Reform. Before the February 1997 vote on the moratorium resolution, former ABA President Eugene C. Thomas wrote to Chesterfield Smith, another former ABA President, who was soliciting support for the resolution by past presidents, and stated:

The trouble is that while our "intent" [to ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and . . . minimize the risk that innocent persons may be executed] may be as pure as the resolution describes, and I think it is, there may be room for disagreement when one gets down to the particulars of each of the referenced (and, thus, incorporated) resolutions.

The deliberations immediately prior to the House of Delegates' passage of the resolution did reveal much disagreement amongst delegates regarding intent as well as particulars. We review the 1997 resolution through the prism of Congressional action, current judicial precedent, and prosecution and defense bars' previous positions in order to give the reader some sense of where the ABA has positioned itself on the spectrum of criminal justice perspectives.

1. Competence of Counsel. In the first of the four numbered groupings of "long-standing" ABA policies to which the moratorium is tied, the ABA calls for jurisdictions to implement ABA "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases," adopted February 1989. When examined in detail, these Guidelines go beyond what any court or the Congress currently requires.

For example, the Guidelines would allow for a stay of any capital proceeding pending the availability of two attorneys, each of whom must be an "experienced and active trial practitioner" with at least three years of defense experience, including at least five jury or bench trials, three of which involved murder or aggravated murder, and at least three state or federal post-conviction proceedings. Each such attorney must "have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases." That the Guidelines do not allow for experienced capital appellate attorneys to represent capital defendants, notwithstanding any number of years of experience and top quality lawyering in capital appeals and habeas corpus litigation. Further, former prosecutors who may know this area of the law as well or better than many criminal defense attorneys are barred from capital defendant representation. What policy underlies this Guideline? Do former prosecutors necessarily lack the "proficiency and commitment which exemplify the quality of representation appropriate to capital cases?"

The Guideline's statement of who is qualified to handle capital habeas cases contradicts the representations of the ABA's Post-Conviction Death Penalty Representation Project. This project is sponsored by the same ABA section which sponsored the moratorium resolution. It has consistently recruited civil litigators to do post-conviction representation work, assuring them they can do so competently. A recruiting notice, still on the ABA's Internet site as of this writing, states, "Lawyers who have taken these cases confirm that civil litigators and appellate lawyers can undertake those appeals effectively." See http://www.abanet.org/irr/deathrow.html.

While Congress in 1988 provided a statutory right to counsel in capital habeas cases, it did not establish requirements of the kind set forth in the ABA Guidelines. In April 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which included specific priorities and deadlines for the deciding of habeas cases, designed to reduce the delay which regularly occurs in carrying out death sentences; these provisions would apply, however, only if the state establishes by statute, rule of its court of the last resort or another agency authorized by state law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings, and such a law or rule of court must provide standards of competency for the appointment of the counsel. In the course of the debate on the bill which became law and on previous proposals, Congress considered and specifically rejected language which would have established specific standards for competency of counsel, leaving it to the states to appropriately provide for this. The only restrictions Congress imposed on the state mechanism were (1) there be a proper acceptance by the indigent prisoner and (2) no counsel shall represent the prisoner in a post-conviction proceeding who previously represented the prisoner at trial (unless requested by the prisoner). The ABA Guidelines call for the adoption by state legislatures and courts of specific standards that require two appointed attorneys with a criminal defense background.

The resolution also demands that the appropriate jurisdictions follow ABA policies "intended to encourage competency of counsel in capital cases," adopted February 1979, February 1988, February 1990 and August 1996. The most exhaustive of these is the one of February 1990, in which the ABA urges that the above Guidelines govern the appointment and compensation of counsel and that jurisdictions provide more resources for investigation, expert witnesses, and the recruitment, training, monitoring, supporting and assisting of attorneys in all stages of capital litigation. Most importantly, however, the ABA policy provides the following:

[(6)] To assure that the state provides competent representation and to avoid procedural delays as well as multiple review of the same issues, the following procedural barriers to federal habeas corpus review should not apply with respect to any state court proceeding at which the state court, in deprivation of the right to counsel recognized in [the] paragraph [] above, filed to appoint competent and adequately compensated counsel to represent the defendant/appellant/petitioner:

(a) exhaustion of state judicial remedies;

(b) procedural default rules; and

(c) the presumption of correctness of state court findings of fact.

In short, the February 1990 resolution calls for dispensing with current procedural rules in federal habeas corpus proceedings, especially those requiring exhaustion of habeas claims in state courts. The policy endorses the defense bar position advocating a complete independent federal court determination of claims never before presented or a re-determination of claims properly disposed of in state court. The February 1990 resolution, in other words, calls for legislation which Congress has rejected and that the courts have not imposed. The 1997 moratorium resolution incorporates and relies specifically on the February 1990 resolution that, in turn, deviates from Congress's determination in the area.

Proposals from the February 1990 resolution would lead to greater litigation in the federal courts as to the sufficiency of a state's appointment mechanism, the compensation provided (as compared state-to-state), resources dedicated to capital litigation, the review of counsel's background and experience, as well as his or her "commitment which exemplifies the quality of representation appropriate to capital cases." If states were to adopt the language of the ABA policy, who will decide what is "adequate" and what is "appropriate?" To what extent would the states' mechanisms be called into question in litigation, thereby delaying the resolution of individual capital cases and the imposition of the death sentence.

2. Federal Court Authority to Exercise Independent Judgment. In the second of the four groupings of policies, the moratorium resolution calls upon jurisdictions to "implement policies and procedures" that "preserv[e], enhanc[e] and streamlin[e] state and federal court's authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings," as adopted in ABA policies of August 1982 and February 1990. While the moratorium resolution was amended by the Section of Litigation to address state courts in state court proceedings, the clear thrust of the resolution is to urge the enhancement of federal court power at the expense of state court determinations. As such, the resolution is targeted at the Congress, not the states.

The earlier ABA policies incorporated in the moratorium resolution were designed to oppose various habeas corpus reform measures then before Congress. They also support complete independent federal judicial authority to review de novo claims previously adjudicated by state courts and to review claims not exhausted in state court, including in a second or successive petition.

As discussed above, the February 1990 policy states that procedural barriers to federal habeas corpus review should not apply whenever there is adjudged to be inadequate compensation or appointment of competent counsel. The thrust of the 1990 ABA policy, in items 6-9, is that procedural bars should be overcome, including upon a showing of mere "neglect of the prisoner." The 1990 resolution states that new claims should be heard upon a "colorable claim" either of factual innocence or of the petitioner's ineligibility for the death penalty. Congress specifically rejected this suggested policy in the Antiterrorism and Effective Death Penalty Act of 1996, where it provided a new standard for federal courts dealing with a new claim: in addition to demonstrating that the factual predicate for the new claim could not have been discovered through the exercise of due diligence, a petitioner must demonstrate that the facts underlying the claim, if proven, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Congress specifically rejected the notion that a mere colorable claim should suffice; that the error need not be constitutional; that a lower standard of proof should apply; and that the court may inquire as to the petitioner's death eligibility, as opposed to the guilt of the underlying offense. The 1990 ABA policy runs counter to the more recent statutory law of 1996. The 1997 moratorium resolution, by incorporating the 1990 policy, appears, then, to target the 1996 habeas reform law, and essentially demands its repeal.

Additionally, the 1990 ABA policy states in item 14 that a federal court should entertain a second or successive petition for habeas corpus relief if the failure to raise the claim is the result of any of the following: an unconstitutional state action, Supreme Court recognition of a new federal right that is retroactively applicable (defined loosely, as described below); a factual predicate that could not have been discovered through the exercise of reasonable diligence; the facts underlying the claim undermine the court's confidence in the jury's determination of guilt; or, consideration of the requested relief is necessary to prevent a miscarriage of justice. In 1996, Congress rejected this approach to second and successive petitions, and established a tighter standard. First, no second or successive petition may be entertained on a claim raised in a previous petition. Second, if it is a new claim, it will be dismissed unless the petitioner relies on a retroactive rule, or the facts could not have been discovered through due diligence, and, in all cases, the claim, if proven, would establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Congress chose instead to employ a tough exhaustion standard for petitioners, rejecting the standards suggested by the 1990 ABA policy statement. Again, the 1997 moratorium resolution appears to call for a repeal of the 1996 habeas corpus reform law.

The 1990 policy, incorporated by the 1997 moratorium resolution, states in item 15 that a change in federal constitutional law should apply retroactively if the failure to apply the new law would undermine the court's confidence in the jury's determination of guilt or the sentencing determination. The Congress rejected this approach in the 1996 law when it preserved the rule in Teague v. Lane, 489 U.S. 288 (1989), that newly-articulated rules of procedure do not apply except where it concerns an act which cannot be made criminal or for "watershed rules of fundamental fairness" going to the "bedrock procedural elements essential to the fairness of a proceeding." The new law limits retroactive applications to those qualifying rules articulated only by the Supreme Court, and thus, not to those made retroactive by a circuit or district court. The 1990 ABA policy has been overcome by the new 1996 federal law, and its incorporation in the 1997 moratorium resolution appears to call for repeal of the 1996 law.

Finally, in item 10, the 1990 ABA policy states that federal courts should adopt rules to facilitate the presentation of all available claims, including, presumably, claims already litigated on the merits by the state courts. While previous statutory law required federal courts to accord a presumption of correctness to state court findings of fact, no such presumption was allowed for state court findings of law or for mixed questions of fact and law. The ABA policy proceeds with the assumption that federal courts should have de novo review of all legal claims and mixed questions previously litigated in state court. Now, in the 1996 law, Congress has provided a strong, new standard that embraces a revised standard of deference to state court findings on allclaims, factual, legal or mixed--the court shall not grant an application for the writ on "any claim that was adjudicated on the merits" in state court unless the state decision was contrary to, or an unreasonable determination of, clearly established federal law as determined by the Supreme Court, or the state court's determination of facts was unreasonable in light of the evidence. This is a major change in habeas law, strongly opposed by the ABA when it was under consideration in both houses of the Congress. The criminal defense bar has relied upon the authority and willingness of the federal courts to review de novo claims determined by state courts to afford an opportunity to re-litigate issue after issue, which, of course, has delayed the carrying out of the death sentence. Counsel have renewed claims based on district court and circuit court rulings that had never been finally determined by the U.S. Supreme Court. Congress has mandated a major change in habeas corpus law, and again, the 1997 moratorium resolution, when examined in the light of the particular policies it incorporates by reference, is a call to repeal the 1996 federal law.

3. Striving to Eliminate Discrimination in Capital Sentencing: A Demand for Statistical Showings? In the third of the four groupings of policies, the 1997 ABA moratorium resolution calls for an effort to "strive" for the elimination of discrimination in capital sentencing on the basis of race of either the victim or the defendant, as adopted in policies of August 1988 and August 1991. Both of the earlier policies simply state that the ABA opposes discrimination in capital sentencing on the basis of the race of either the victim or the defendant and calls for authoritative measures requiring studies of the existence, if any, of bias in the federal judicial system, and for remedial steps to address and eliminate any bias found to exist.

The report accompanying the ABA resolution cites studies claiming to show a greater likelihood of a death sentence where the victims are white than in minority-victim cases, implying that juries value the lives of the white victims more than the minority victims. These claims have regularly been made and rejected by the U.S. Supreme Court. In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court stated that the real question was whether the particular defendant in the case before the Court had suffered racial discrimination, not whether an abstract showing could be made that someone else in some other case had suffered discrimination. Generally, then, the High Court has rejected the notion that statistical showings concerning other cases can establish that discrimination occurred in the individual case before it, except upon an extremely high threshold of evidence pointing to a systematic justice-wide intrusion of racial discrimination.

Further, the studies cited by the report fail to mention a contrary study by the Rand Corporation in 1991, or to the conclusion of the district court in McCleskey v. Kemp, known as McCleskey v. Zant at the district court level, that the statistical models in that case produced no statistically significant evidence that race plays a part in either the prosecution's decision to seek the death penalty or the jury's decision to impose it. Assuming statistical showings from other cases canpoint to racial discrimination in those cases, it does not follow that such evidence establishes there was racial discrimination in the case before the court. To date, the court, the states and Congress have not established a statistical showings requirement, one which may be grounds to reverse a death penalty conviction or the imposition of the sentence.

CONCLUSION
The American Bar Association, according to its mission statement, seeks to be the representative of the entire legal profession. The ABA's ability to fill that role in the criminal justice area has been questioned by many in recent years, both inside and outside of the organization. That debate will continue. The Federalist Society Criminal Law and Procedure Practice Group submits this report toward the goal of a more informed debate.