Vol. 30, No. 8
CBA Board of Governors' Resolution on a Death Penalty Moratorium: Two Viewpoints
In Favor of a Moratorium on the Death Penalty: The CBA Position
by Lorraine E. Parker
CBA Board of Governors Representative for the Denver Bar Association and partner with the firm of Montgomery, Kolodny, Amatuzio, Dusbabek & Parker, L.L.P.
After extensive and spirited discussion, the Colorado Bar Association Board of Governors voted in favor of joining the American Bar Association in calling for a moratorium on executions in the United States. The Resolution was originally presented two years ago by the Pueblo County Bar Association, but had been tabled to allow the Board of Governors representatives an opportunity to discuss the moratorium with their individual bar associations. In addition, at the time it was originally presented, a number of the studies on the subject were fairly recent, or incomplete, and the representatives needed additional time to study the issues. The additional time resulted in a gathering of broader views.
Recent studies and reports of individual cases have raised legitimate concerns that the death penalty is being imposed in an arbitrary and discriminatory manner in some states. Studies have demonstrated that African Americans and members of other minority groups are more likely to be sentenced to death than whites, and that the death penalty is more frequently pursued when the victim is white. A number of innocent people have been sentenced to death, particularly in Illinois, where the governor declared a moratorium on the death penalty until the problems could be corrected. The CBA Board of Governors heard firsthand about serious deficiencies in some states, such as Texas, in the experience and abilities of many of the attorneys appointed by the state to defend capital cases. The statistics and experience in other states justify taking a closer look at how the death penalty is applied.
It is important to emphasize that the CBA Board of Governors’ Resolution did not state an opinion for or against the death penalty, state an opinion on Colorado’s death penalty system, nor call for an end to the death penalty. The purpose of the Resolution was to recognize, as a state bar organization, that serious deficiencies exist in other jurisdictions. The Colorado Bar Association is uniquely positioned to take a stand in favor of a moratorium until the legitimate concerns surrounding the death penalty are analyzed and addressed. Colorado has a death penalty system that has been judiciously imposed; in recent times, there has been no claim that Colorado has convicted or executed an innocent person. However, the trial and sentencing of Timothy McVeigh occurred in Colorado, prompting many to consider the issue, perhaps for the first time. In broader terms, the imposition of the death penalty is fundamentally related to the judicial system and, as lawyers, we have specialized knowledge concerning how that system should work.
The CBA Board of Governors, therefore, did not base its vote on any alleged deficiency in Colorado’s capital punishment system or any individual fact pattern. Instead, a majority of the Board believes that as long as the death penalty is imposed in an arbitrary, discriminatory, or unfair manner in any state, or by the federal government, it loses its legitimacy in all states. The CBA Board of Governors therefore has called for a moratorium on the death penalty until these concerns have been addressed by all jurisdictions that impose the death penalty.
Here is the CBA Resolution:
Resolution of the Colorado Bar Association
(Passed by the CBA Board of Governors, December 9, 2000, vote 32 to 24)
WHEREAS, there are legitimate and substantial concerns that the death penalty is being imposed in an arbitrary and discriminatory manner in some states, and these concerns go to fundamental issues such as innocence, race, class, gender, age, mental health and the effective assistance of counsel; and
WHEREAS, in 1997, the American Bar Association called on each jurisdiction that imposes capital punishment to stop carrying out the death penalty until it implements procedures which (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; and
WHEREAS, other Bar Associations have since joined this call for a moratorium, and the Governor of Illinois has imposed a moratorium on the imposition of the death penalty in that state, due to some of the above-mentioned concerns; and
WHEREAS, the Colorado Bar Association has consistently supported measures which guarantee every person a fair and impartial system of criminal justice;
NOW THEREFORE, BE IT RESOLVED, that the Colorado 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 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, and calls upon the Colorado Bar Association to do the same:
(i) Implementing ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases and Association policies intended to encourage competency of counsel in capital cases;
(ii) Preserving, enhancing, and streamlining state and federal courts’ authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings;
(iii) Striving to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendant; and
(iv) Preventing execution of mentally retarded persons and persons who were under the age of 18 at the time of their offenses.
FURTHER RESOLVED, that in adopting this recommendation, the Colorado Bar Association takes no position on the death penalty, nor on the issue of whether the policies and procedures used in the State of Colorado adequately address the concerns expressed herein.
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