I have been writing this professional conduct column for over 10 years, with and without co-authors, discussing topics from the mundane to the philosophical. This month, my co-author is Lynn Nichols, who is beginning a new practice representing respondents before the Disciplinary Board, and whose experience as a former homicide prosecutor in the Philadelphia District Attorney’s Office makes her well suited to join me in this column, exploring a question of the ethics and morality of recent Justice Department decisions relating to the death penalty.
In the past month, you may have missed two significant pieces of news relating to the death penalty. First, the Trump administration, with seven weeks left in power, has scheduled five executions, the last of which will take place on Jan. 15, 2021, five days before a new anti-death penalty administration is sworn in to power. See https://thehill.com/homenews/news/527579-five-federal-inmates-scheduled-for-execution-before-inauguration-day. The second piece of news is that, on Nov. 27, the DOJ issued a final rule that will become effective on Dec. 24, providing the government with greater flexibility to conduct federal executions in any “manner” as permitted by the law of the state where the sentence was imposed. This change in the DOJ’s final rule would no longer require federal death penalty sentences to be carried out by lethal injection but instead would allow for executions by other methods such as poisonous gas, electrocution or firing squads.
Last year, the Department of Justice (DOJ) resumed executions after a nearly two-decade hiatus, even though 22 states and Washington, D.C. have abolished the practice completely, and three states (California, Oregon and Pennsylvania) have imposed gubernatorial moratoriums. Since the revival of federal executions in July 2020, eight executions have been carried out at the federal prison in Terre Haute, Indiana, including one two weeks after the November 2020 election.
These are all lawful actions, implemented through the efforts of lawyers employed by the Department of Justice. Yet these lame-duck measures have moral implications far greater than the ordinary lawyer must face in their day. For example, the last time the U.S. government carried out an execution between a presidential election and the inauguration of the new president for a federal crime was nearly 132 years ago, on Jan. 25, 1889, when the outgoing administration of Grover Cleveland executed Richard Smith, a Choctaw Indian, for a murder on tribal land in Arkansas.
Every Justice Department lawyer knows that if the five currently scheduled are not carried out by the current administration, they will not be carried out by the next administration and in fact, the federal death penalty may be abolished. The prisoners who are scheduled to be killed within the next seven weeks will be spared. This is literally a matter of life and death. In fact, we infer that these executions are being scheduled to ensure that the prisoner is not spared under the Biden administration. The scheduling of these executions is intentionally designed to ensure that these five people cannot benefit from the gift of life that the new administration promises.
We assume that the prosecutors in the Justice Department who are working on death-penalty cases have reconciled their own moral barometers to the death penalty. As Attorney General William Barr has said “The American people, acting through Congress and presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death.” But does not the scheduling of these executions, which are weeks away from being cancelled by the new administration, raise the moral stakes for all Justice Department lawyers?
In the face of the lawfulness of these scheduled executions, is there a Rule of Professional Conduct on which a Justice Department lawyer could rely to refuse to assist in this endeavor? And, if not, is there guidance for a lawyer whose moral code is violated by a professional obligation that is legal but reprehensible? Is there a basis for a conscientious objection in the law that goes beyond the Rules of Professional Conduct?
The preamble to the Rules of Professional Conduct states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice. … guided by personal conscience.” Pennsylvania Rules of Professional Conduct, Preamble and Scope ¶ 1 and 7 (2019). The rules also speak to the special role of prosecutors: “A prosecutor has the responsibility as a minister of justice and not just an advocate.” RPC 3.8, Comment 1. However, beyond these provisions, the rules provide no helpful advice on how to manage a moral dilemma ethically and professionally. The only recourse is to speak out against power, often at personal cost.
We have seen attorneys taking principled stands against power recently. For instance, when Attorney General Barr, supporting President Donald Trump’s unfounded accusations of widespread election irregularities, issued a memo directing federal prosecutors to investigate “specific allegations” of voter fraud, Richard Pilger, the chief of the Election Crimes Unit, stepped down from his post in protest. In defense of our democratic institutions, this lawyer spoke out and acted at great personal sacrifice. Following his example, 16 of the prosecutors who were authorized to conduct the investigations wrote a joint letter to the Attorney General informing him that no evidence of voter fraud existed and that his directive to investigate the election wrongly “thrusts career prosecutors into partisan politics.”
On the other hand, we have seen lawyers supporting cases that have wrongly legitimized these spurious claims of election fraud. In these cases, the Rules of Professional Conduct provide the necessary guardrails. The cases must be competently drafted, researched and argued. RPC 1.1. The cases must be meritorious. RPC 3.1. The briefs must contain true facts and current law. RPC 3.3. The lawsuits must not seek to discriminate by harming any of the protected classes described in Rule 8.4(g). The prosecution of these lawsuits cannot include press conferences that violate the rules against pre-trial publicity. RPC 3.6. Lawsuits that do not meet these standards violate the Rules of Professional Conduct and no lawyer should have to be concerned about refusing to be part of these efforts.
The questions raised here are fundamental to our free society and are likely to become even more pressing in the future: how do we, as lawyers, fulfill our duties as “public citizens with a special responsibility for the quality of justice?” We hope that the attorneys who wield the levers of power over the scheduling of these executions will follow the lead of their colleagues in the Election Crimes Unit, speak out against these lame-duck executions and refuse to participate. Unfortunately, the Rules of Professional Conduct do not require them to do so. The rules provide only a minimum benchmark of ethics, not a “best practice” or a “gold standard” of conduct. For that, we must rely on our consciences.
Lynn Marietta Nichols joined the Hill & Associates trial team in 2018. She began her career as a Philadelphia assistant district attorney where she served for more than 22 years working her way up through the ranks to becoming a senior supervisor in the homicide trial unit. She is currently expanding her practice to include representing respondents before the Disciplinary Board.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the December 2, 2020 issue of The Legal Intelligencer. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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