In re O.M.

SCHWELB, Associate Judge,

concurring:

As Chief Justice Burger wrote in Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980) (concurring opinion),

Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.

“But is it fair?”, Chief Justice Warren used to ask counsel who appeared before the Court during a more activist judicial era. In his persuasive opinion, which I readily join,1 Judge Terry has demonstrated that *585affirmance is our only reasonable recourse if we adopt, as we surely must, the Holmes-Burger approach. I write separately to express my view that the result we reach, in an excruciatingly emotional case that may easily divert one’s moral compass, also passes Chief Judge Warren’s test of basic fairness. In essence, the decision announced today permits2 the District of Columbia to comply, in an intergovernmental jurisprudential context, with the basic strictures of the Golden Rule.

In my opinion, there is a good deal of barristerial shadow-boxing at work in this case. Because their most pressing concern — that O.M. may not be treated fairly if he is turned over to Alabama authorities — cannot be successfully litigated directly, counsel are in substantial part addressing such matters as “publish or perish” under the Documents Act and urging us to recognize that “there are no second-class laws.”3 These are perfectly legitimate legal issues which have been well and conscientiously presented by O.M.’s attorney and by the Public Defender Service in conformity with the highest traditions of our profession.

As often happens in the litigation process, however, some of the contentions being advanced and the fundamental interests at stake do not altogether coincide. The core value which counsel are trying so eloquently to protect in this case is not really the right of the citizens of the District to have their laws and regulations neatly codified. But for the plight in which O.M. now finds himself, I venture to suggest that, like most citizens, he would not be profoundly interested in the disposition of bureaucratic glitches regarding whether official acts have or have not been duly recorded. In a way — and this is in no sense intended as a criticism of counsel, whose performance has been beyond reproach — ingenious arguments about who signed what when and filed it where effee-tively mask what is really at stake in this controversy.

When, as in this case, the possibility of capital punishment looms in the background, the greatest caution must surely be exercised by counsel before agreeing to rendition from a jurisdiction which proscribes the death penalty to one in which the executioner plies a legal trade. Nevertheless, I am not at all certain that this case would be before us at all if O.M.’s alleged offense had been committed in, say, northern New England or the Pacific northwest. I wonder whether counsel would have opposed rendition to a jurisdiction in one of these areas when such opposition was all but certain to require O.M.’s detention here pending inevitably protracted proceedings. I also wonder whether the possibility of O.M.’s return to such a jurisdiction would have captured the public’s imagination or sparked emergency legislative intervention on the accused’s behalf.

The events here at issue, however, took place in Alabama, where O.M.’s father was allegedly murdered by police, where his uncle died in jail, and where his family, which has apparently been active in the civil rights movement, is said to have been subjected to cruel harassment. O.M.’s family and lawyers do not want this youngster to have to stake his future, and perhaps his life, on Alabama justice as they perceive it.

Although judges are supposed to be rigorously objective, we too are human. Like Judge Eilperin, who decided this case in the trial court, I was a civil rights lawyer for the Department of Justice. I worked in the deep South during the days of entrenched segregation, when the unspeakable was commonplace and injustice reigned supreme. Despite momentous changes during the past quarter of a century, which has seen black citizens enfranchised and official segregation, the step-child of slav*586ery, consigned to the ash-heap of history, I must still swallow hard as I do my duty and cast my vote in this case as I believe that the law compels. Although 1989 is not 1964, the past casts its shadow over the present, and I can only hope that the sun will emerge from behind the clouds.

But a judge’s duty is to decide eases according to the law, and not pursuant to his or her personal predilections. May we as judges predicate our decision on the assumption that O.M.’s rights will not be respected if he is returned to Alabama? The answer is, of course, an emphatic No! As the first Justice Harlan, speaking for the Court, explained more than a century ago:

Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them; for the judges of the State courts are required to take an oath to support that Constitution, and they are bound by it.

Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542 (1884). Moreover, “we yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication.” Zwickler v. Koota, 389 U.S. 241, 248 (1967), quoting Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D.Kan.1945). Our nation’s flag flies in Alabama as well as in the District of Columbia. That state is the forum where O.M.’s rights must be vindicated.

Practice does not always conform to theory. Reality often falls short of the ideal. As I have noted, however, today is not yesterday. In Birmingham, Alabama, the homes of civil rights leaders were frequently bombed a quarter of a century ago, and four little black girls were murdered in a racially motivated assault on the church where they were attending Sunday school. Today, though, Birmingham has a black mayor, and there is a major controversy as to whether white fire fighters have been the victims of racial discrimination. See Martin v. Wilks, — U.S. -, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). This would not have been the issue in Bull Connor’s day, when most blacks were not even allowed to vote. Authorizing O.M.’s transfer to Alabama pursuant to the Compact is not the equivalent of surrendering a Jew for trial in Nazi Germany or delivering Steve Biko to South African authorities. Moreover, as we recently had occasion to note in Washington Post Co. v. Minority Business Opportunity Comm’n, 560 A.2d 517, 518-19 (D.C.1989), our own city’s history in the area of racial equity is hardly unblemished.

Capital punishment is morally repugnant to many of our citizens. I happen to be one of them. We do not execute human beings in Washington, D.C. But it is not up to the District of Columbia to determine what constitutionally permissible penalty Alabama may impose for a crime committed within its borders. That is for the citizens of Alabama to decide.

The District is a party to the Interstate Compact on Juveniles. That Compact contains no exception for cases in which the reviewing state elects to exercise its right, vindicated by the Supreme Court, to retain the ultimate penalty in its jurisprudence. Indeed, the Compact contains no provision at all which would permit unilateral noncompliance by a signatory state. If the District should take the position that the Compact exacts too high a price when it requires rendition of a juvenile to a state which retains the death penalty, it may renounce it with six months notice to the other jurisdictions which are parties to it, in accordance with the provisions of Article XIV. Short of that, however, the District, acting through its courts as well as its executive officers, is committed to compliance with the Compact.4 It is not the province of this court to initiate or countenance evasion of this commitment when the District government stands ready to comply.

*587Whatever goes around, comes around. If our city, through its courts, does not respect its obligations to other jurisdictions, then they will not respect theirs to us. Under the Compact, the District’s word is its bond. This court may not break the District’s promise. The law and our decision so declare.

. Since the emergency legislation has expired, see part IV of Judge Terry’s opinion, we need not decide whether the Council had authority to legislate on the subject which it addressed. My concurrence in Judge Terry’s opinion does not imply any view whatever on that issue.

. Whether the Compact would be judicially enforceable if the District were refusing to comply with it is an issue which is not before us.

. This phrase was used by James Klein, Esq., of the Public Defender Service in his excellent oral argument for amicus curiae. I find it revealing that a case having its inception in the second-class citizenship to which blacks were once relegated is presented to us in terms of nondiscrimination among statutes, rather than among people.

. See D.C.Code § 32-1104 (1988).