Policy Issues

Judicial Impartiality and Independence

Neutrality is the cornerstone of justice.

An impartial judiciary ensures the fairness of our courts and provides fair and equal protection for all citizens. Judges must be free to rule on cases based on facts and the law, not public opinion and be free from external influence, from political pressure and special interests.

An independent judicial system assures all Americans that cases will be decided on their merits, not on ever-shifting popular opinion and political currents. Judicial decisions should be based on what is right and just, not what is popular at the moment. Examples include judicial decisions to extend voting rights to women and end segregation.

American Bar Association

"Judicial Independence is the fundamental principle of our democratic republic that provides a judiciary free from partisan influences; a judiciary that impartially and fairly applies the facts of a case to the applicable law"


American Judicature Societies Center for Judicial Independence

"The American Judicature Society's Center for Judicial Independence promotes a judiciary that is free to, and that does in fact, render decisions based solely on the law and the facts of each case, without bowing to popular, political, or other extraneous pressures."


The Honorable W. Michael Gillette

Associate Justice of the Oregon Supreme Court since 1986, has written on the subject of judicial rulings, an independent judiciary and the U.S. and Oregon Constitutions. "The constitution is the deal that everyone struck and that everyone has agreed to live by ever since.Article III of the federal constitution, which is reflected to a degree in Article VII of the Oregon Constitution, was to make judges independent, so that at least American judges would no longer have to be dependent upon the good will of the Parliament and the king, the president and the Congress, the governor and the legislature for their ability to survive. That level of independence that they were granted instead would ensure that they would have the freedom to obey the obligation they undertook, which was to make the constitution work in the face of sometimes adamantine opposition by the other two branches of government.Now, one of the interesting things about government in Oregon is that we're referred to as the Judicial Department, which, I think, creates the impression the part of some that we are like any other department of the executive branch of the government. And whatever else it is that we are, we're not that. We're separated; our powers are separated from the powers of the legislature and the executive by the constitution."

Death Penalty Moratorium

The MBA Board of Directors unanimously passed a resolution in 2001 asking the State of Oregon to place a moratorium on the death penalty and to establish a broad-based citizen task force to evaluate the death penalty process and ensure that it is fair for everyone.

The resolution, similar to that of the ABA , called upon the State of Oregon not to carry out the death penalty until the State implements policies and procedures that are 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.

The MBA board urged Governor Kitzhaber to

  1. implement the ABA "Guidelines for Appointment and Performance of Counsel in Death Penalty Cases" and ABA policies intended to encourage competency of counsel in capital cases;
  2. preserve, enhance and streamline 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;
  3. strive to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendant; and
  4. prevent execution of mentally retarded persons and persons who were under the age of 18 at the time of their offense.
  5. The MBA takes no position on the death penalty itself.

ABA Death Penalty Moratorium Implementation Project

"A system that will take life must first give justice." Former ABA President, John J. Curtin, Jr.

The Death Penalty Moratorium Implementation Project was launched in September 2001 as the American Bar Association's "next step" in working to obtain a nationwide moratorium on executions.


The ABA Death Penalty Representation Project

The American Bar Association created the Death Penalty Representation Project in 1986. The Project's goals are to better inform the bar and the public about the lack of representation available to death row inmates, to address this urgent need by recruiting competent, volunteer attorneys and to offer counsel training and assistance. The Project also works for systemic changes that would assure those facing death are represented at all stages of the proceedings, from trial through clemency, by qualified, adequately compensated counsel.