Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2005


Take Responsibility
I write in response to the article "Naked Assault on the Public and Courts" by Paul Gowder in the July 2005 issue. I find it particularly ironic that Mr. Gowder’s article appeared in the same issue with the article "Canceling the Debt" by Janine Robben.

Contrary to the shrill tone of Mr. Gowder’s article, I do not find the proposition that people should pay their debts to be a civil rights violation. I would have the law focus on why the debt was incurred. Debt due to some catastrophic event should be treated differently from routine credit card debt. Regardless of whether the credit card industry has driven their behavior, I doubt that most credit card debtors could say with as straight face that they believed that their credit card charges would not have to be repaid. Those people should be required to take responsibility for that debt. Persons who incur debt on account of a catastrophe not of their doing could be treated differently.

If Mr. Gowder had participated in Ms. Robben’s sidebar article, "How to Manage Law School Debt," perhaps he would have added as the final "tip": "File for Bankruptcy."

Peter M. Appleton

Trust Officials, Jurors
I write to compliment Kathleen Cegla for her recent thoughts on the death penalty (Parting Thoughts, "Oregon’s Death Penalty: Another View," May 2005), and am reminded of another fine article she wrote long ago about myths about a supposedly non-Spanish speaking defendant in Oregon. Her common sense is always appreciated. She reminds us that legal cases are always fact-specific, and that we should have the courtesy to recall the facts of individual cases and how they looked to the prosecutors, judges and juries who decided them. What the public and lawyers think is too often unrelated to what the facts proved to be. I would be the last to claim that courts and the law, arenas of "managed reality" in which "truth" is — appropriately but disconcertingly — but one of many competing values, inevitably produce the right result, but they do produce testimony, evidence and decisions — by police, prosecutors and defenders, juries grand and not so grand, and judges trial and appellate. What a case appears to be at the beginning is often different from what it appears or is decided to be at the end.

There are those who oppose the death penalty because of, in the words of one title, "The Inevitability of Caprice and Mistake" — although this can be an argument for doing nothing in a wide range of areas, as what human activity is not subject to such constraints. There are others just philosophically opposed to the death penalty, who have no interest in the facts of individual cases. There are those who believe it is inequitably applied, discriminating against the poor and minorities (although this argument seems to argue too much. There is always a problem with an argument which says that a punishment would be apt, if only it were more widely applied — as that argument, if honest, is not at all opposed to the death penalty). This is an arena in which many arguments concede points only for debaters’ purposes.

There are also fads or trends (to be more polite) in methods of opposing the death penalty. A recent one is to argue that it is applied inequitably (by race, sex, color geography or even, as in Oregon, time...as we have a habit of installing and un-installing the death penalty), and therefore should not be applied at all. Under this argument, on a countrywide basis, because one cannot receive the death penalty in one or more states, one should not receive it in others. Why is the "same" murder "capital" if done in Austin, but not in D.C.? Some of the arguments are arguments against a federal system (however, one could argue the converse, that all states should be required, in the name of "equity," to have capital punishment). When the death penalty is sparingly used, which is more and more the case, statistics become of less and less use in analyzing individual cases. It is a truism of statistics that certain thresholds must be passed before numbers become statistically meaningful. When different people make a series of critical decisions, the results will necessarily vary case by case. Some of us argue that judges should have more discretion (and not be hamstrung by sentencing guidelines), but this "virtue" produces the corresponding effect of "inequity."

It is also ironic that some complain of the time delays in the death penalty when they and their like are responsible for many of the delays, and when these same people often oppose attempts to streamline the system and limit appeals and delays. This is equivalent to those who restrict nuclear power and then complain because it is "too expensive."

We need to respect the public officials and jurors whom we call upon to enforce our laws, and trust them (with all of the reviews that our system allows) to do the right thing.

Alan L. Gallagher

A New Standard
Thank you for article "Never Say Never" (July 2005) and its analysis of the shift in Supreme Court thinking from Penry v. Linaugh to Atkins v. Virginia. These cases considered the constitutionality of executing people with mental retardation. Penry said it was constitutional. Thirteen years later, Atkins said it was not.

The article noted that the Court reversed course because it recognized, in the intervening years, "a national consensus" against such executions. In doing so, it formulated an interactive relationship between judicial and legislative power:

Our independent evaluation of the issue reveals no reason to disagree with the judgment of the legislatures that have recently addressed the matter and concluded that death is not a suitable punishment for a mentally retarded criminal. Atkins.

The partnership was further emphasized in the matter of relief. The Court would announce a constitutional standard but not direct its application:

[W]e leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences. Atkins.

Adding a bit of spice to this legal stew is the record of Oregon. Despite the "national consensus" noted by the Court and numerous bills requested by disability advocates, Oregon never enacted legislation to limit the execution of people with mental retardation. In the two sessions since Atkins, the legislature has also refused to set out "appropriate ways to enforce the constitutional restriction."

It’s easy to see why one might never say never at such an intersection of law, politics and morality.

Bob Joondeph

No Regrets, No Debt
I read with great interest Ms. Robben’s article ("Canceling the Debt," May 2005) on the debt load that law school students have when they graduate. Ms. Robben did not mention the method I used to eliminate my debt. Following my graduation from law school, I enlisted in the US Army. The army has a recruitment incentive called the Loan Repayment Program. In exchange for a three year enlistment, the Army will pay up to $65,000 in student loan debt. There are some drawbacks: The army will only pay principle, not any accumulated interest; and the payment amounts are taxed as income. For myself, however, the opportunity to eliminate my student loan debt in three years time was the right choice. I completed my enlistment, then applied for and received a commission as an officer in the Judge Advocate General’s Corps of the army.

This option is not for everyone. Army life can be difficult, and being an enlisted soldier with a law degree can be trying. I often asked myself if I had done the right thing, especially while scrubbing latrines or halfway through a 12-mile march with full equipment in the snow and cold of Fort Drum, N.Y. I have now been in the army for over 10 years, and I have no regrets, and no debt.

Shawn W. Gordon
Captain, Judge Advocate
Legal Instructor, 7th Army Training Command
Vilseck, Germany

Take the Ads
As the nation continues to rely heavily on the National Guard in protecting its interests, the Oregon State Bar bans the Guard from advertising in the Bulletin.

As the Bulletin sinks further and further into left field, we wonder what is next? Maybe a few "parting thoughts" that we should elect liberal Democrats in 2006 because President Bush is once again "taking short-sighted swipes at … the working poor … at the bequest of the (evil) finance industry," while, at the same time he gleefully works to "push the economy further into recession."(What recession, you may ask.) The bar, it seems, would prefer to print such DNC tripe than accept an ad from the people who protect them.

I suggest the bar Bulletin accept content appropriate ads from anyone who is willing to pay for them and count on its members to be able to force themselves into not purchasing from people or organizations that they don’t like. To censor speech not because of its content but because of the beliefs of the speaker seems the worst form of censorship.

I also suggest that the powers that be read Kelly Hagan’s article from page one of the July/August 2005 Multnomah Lawyer. In it, MBA President Hagan urges that non-partisanship be a primary goal of the association.

Ron Wade

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