Death-Penalty Work Tests Lawyers' Ethics

For centuries, the death penalty has been a feature of our jurisprudence. Yet we have never collectively asked, What are the ethics of death for the legal profession?

Is it ethical for prosecutors, with all of the power of the state behind them, to ask to kill a human being? It is legal and constitutional, just as it would be legal and constitutional for doctors to assist in executions. But is it ethical for us as a profession to use our power in this way?

And is it ethical for private attorneys to continue to walk away from hundreds of people sentenced to death but with no lawyer to handle their post-conviction challenges? Doctors can walk away from a dying patient, but it's not ethical.

Now Judge Jeremy Fogel has presented a new ethical dilemma. The judge recently issued a series of questions to the parties, asking them for advice on how to design a better way for the state of California to kill people. He asked whether one or two drugs would be better than the three currently used, whether different drugs would reduce the chance of pain and suffering, and whether the physical layout of the death chamber needs to be changed, to improve sight lines and reduce the need for lengthy tubing that might fail. Is it ethical for attorneys to answer these questions?

For centuries, lawyers and doctors have maintained ethical codes for similar reasons. Ours are professions of prestige and power. Our titles grant us much more than bragging rights for our parents. People come to us for help, not because they enjoy our company but because they have no choice. Our clients depend on our knowledge and advice.

"With great power comes great responsibility," so said Spiderman, President Franklin Roosevelt and Jesus Christ (according to Google). Our ability to help those most in need also gives us the ability to abuse those most vulnerable. The ethical codes of the medical and legal professions recognize that we have certain duties, responsibilities and restrictions beyond our personal moral compass. Our professional ethical codes make certain that we do not use our positions of power to steal or harm others, that we put the interest of the client or patient before our own personal motivations and that we bring honor and respect to our professions as a whole.

The medical community has long struggled with ethical concerns about professional involvement in execution, long before the recent challenges to lethal injection. In fact, the American Medical Association first issued an opinion that physician involvement in executions was unethical in 1980, years before Oklahoma legislator Bill Wiseman, searching for a more humane method of execution, convinced a toxicologist he knew to sketch out what ultimately became the formula for lethal injection for the entire nation.

In contrast, the legal community seems to have ignored the death penalty's ethical dilemmas. Searching ethical opinions, the American Bar Association model code, law reviews and secondary sources reveals precious little conversation in the legal community touching on the professional ethics of death. Only one article discussed the particular ethical implications for prosecutors presented by the death penalty, and then only on the issue of whether candidates for district attorney or attorney general could ethically tout their rate in achieving death sentences (no, according to the author).

Prosecutors have almost-unfettered discretion in deciding when to pursue death. Particularly in California, where the death-penalty statute is so broad as to encompass nearly every homicide, the district attorney of each county has the power to seek death in nearly any case he or she chooses. There are no procedural requirements for how district attorneys make these decisions and no guidelines, other than those adopted by each individual office or person. And there are no rules, guiding principles or even discussion in legal ethics codes or texts, not even a rule requiring the prosecutor to ensure that racial or other bias does not dictate when the death penalty is pursued.

Some might respond that the jury, not the prosecutor, makes the decision between life or death. True. But the prosecutor does not simply present two alternatives to the jury; the prosecutor advocates for death. The prosecutor uses all of his or her professional skill to convince the jury to choose death, beginning with choosing a jury most likely to choose death. In death-penalty trials, potential jurors who are strongly opposed to the death penalty are removed by the court for cause and prosecutors use peremptory challenges to strike jurors who seem inclined to vote for life.

The literature on legal ethics had only slightly more discussion of the duties of defense attorneys related to the death penalty. Several articles and ethical opinions addressed whether the defense attorney is ethically bound by a client's decision to "volunteer for execution" (generally, yes). In addition, the ABA Standards Relating to Criminal Justice prohibit an attorney from taking a death-penalty case unless he or she meets the qualifications specified in the ABA Guidelines for Death Penalty Representation. This makes sense. Doctors probably have a similar rule stating that doing open heart surgery is unethical if you are not a cardiologist.

But the result is that the primary ethical guidelines for defense attorneys regarding death-penalty cases tell us when we should stop or refuse to represent a client. Under the topic "Pro Bono Service," the ABA Model Rules of Professional Conduct require all attorneys to contribute 50 hours a year to those who do not have legal representation, citing as a prime example death-penalty cases in which the government fails to provide the defendant with an attorney. But 50 hours a year would hardly be enough even to read the file in a death-penalty case.

As a result, there is no ethical imperative to represent people on death row. Yet one-third of the men and women on California's death row lack an attorney to pursue post-conviction review. Our advocacy system of justice depends on someone representing each side, hopefully, equally matched. The entire premise of our judicial system is that opponents vigorously arguing their respective position reveal the truth to the neutral fact finder, the jury or judge. But when one side does not have an advocate, no one can have justice.

The lack of any dialogue - let alone ethical guidelines - about the legal profession and the ethics of the death penalty would be less urgent if the system was not so terribly broken. With 650 people on death row, with 25 years elapsing between crime and execution, with people on death row dying while they wait for their cases to be resolved (including people who may be innocent), there is broad consensus that the death penalty is not working in California. Is it ethical that we continue to send people to death row knowing these flaws?

Some death-penalty supporters argue that death-penalty opponents have hijacked the system through lengthy delays. But defense attorneys are fulfilling their core ethical duty: zealously advocating for their client. We as a profession have created this monster. It's time we take some responsibility for it. Is it ethical for us to continue to ignore its failings and to continue to tell victims we can make the system work if we can't?

These are not rhetorical questions, and asking them does not presume we know the answers or that there is any one answer. As with all ethical questions, there will be many thoughtful perspectives on these issues. But one thing we all should agree on is that it is long past due for us, as a professional community, to begin asking, What are the legal ethics of death?

Natasha Minsker is director of death-penalty policy for the American Civil Liberties Union of Northern California.