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Till death be there justice
By Ann Coppola, News Reporter
Published: 11/12/2007

Justicescale When it comes to an issue as deeply divisive as the death penalty, the American Bar Association (ABA) is a surprising anomaly. The legal institution, with more than 400,000 attorneys as its members, does not take a position as to whether or not the United States should utilize capital punishment. Even though the ABA doesn’t have an answer to the question of “should we or shouldn’t we?” they certainly have an opinion as to how we are handling the issue.

Last month the ABA released the final results of its three-year study assessing the death penalty systems of eight states: Alabama, Indiana, Ohio, Pennsylvania, Tennessee, Arizona, Florida, and Georgia. The reports from each state were between 400 and 500 pages long, but for those who don’t have time to read all 3,200 pages of data and legal analysis, the ABA’s final thoughts cut right to the chase.

“One overarching conclusion that can be drawn from the work the ABA did in all eight states is that the death penalty systems are not delivering the justice that the American people deserve and expect, and indeed are guaranteed,” says ABA Death Penalty Moratorium Implementation Project Chairman Steve Hanlon. Since 1997, the ABA has called for a national moratorium on executions, and its hoping the results from this latest study will spur states to take that action.

“We have called for all death penalty jurisdictions across the country to impose a temporary halt, that is to stop all executions until they can review their systems in detail to ensure that these systems deliver fair and accurate justice,” Hanlon says. “The ABA has no confidence that fairness and accuracy are being provided in our death penalty systems. It is in this sense that the death penalty has become a cancer on the American justice system.”

Deciding whether or not the states in the study were implementing the death penalty in a fair and accurate way was left to the ABA-recruited state based assessment teams comprised of judges, legislators, prosecutors, defense attorneys, and law school professors. These teams had to comb through the ABA’s 93 protocols for fairness in capital cases and decide if their state was in compliance, in partial compliance, or not in compliance at all.

“Foremost among the problems is an appalling lack of relevant data in many states,” Hanlon explains. “In state after state, ABA and local teams were often unable to assess whether a state complied or failed to comply with policy recommendations due to stunning lack of data on various topics.”

The topics examined were many and varied, including death row demographics, DNA testing and crime labs, the appointment and performance of defense counsel, clemency, judicial independence, and mentally ill offenders. Some of the more serious concerns the ABA raised included the significant racial disparity of those executed. It was also reported that most of the states had at least one serious incident of fraud or had mistakes in crime laboratories.

“People make the assumption that our system is accurate, and that when we execute we have the right person,” says Villanova Law School professor Anne Poulin, who led the Pennsylvania team. “But you really have to look at the innocence cases which tell us that defendants who have gone through these processes with those guarantees sometimes turn out to be innocent.”

Since 1976 when the United States Supreme Court reinstituted the death penalty in 38 states, there have been 64 clemencies granted. The ABA says it found shortcomings in the clemency process as well, in that most states fail to require the clemency decision maker to explain the reasons for their decisions. Former Indiana governor Joe Kiernan knows exactly what it’s like to be the decision maker in that crucial last part of the death penalty process.

“I was involved in two cases where I granted clemency in Indiana,” says Kiernan, a member of the Indiana assessment team. “In the clemency process I went through I looked at a number of things, including the issue of mental illness, the issues of relative culpability and ultimately the proportionality of the sentences granted in different cases. In that process came the doubt. For me, what was most disturbing was the issue of the quality of counsel and the ability of the system to deal with it.”

The ABA says experiences like Kiernan’s show how the different issues with the death penalty system are interconnected. Since none of the assessments pinpointed one major flaw in the states’ death penalty systems, the ABA hopes the reports will demonstrate how the problems found can influence and contribute to one another.

“It is our hope that if and when states choose to undertake studies of their own, these assessments will be used in that process,” Hanlon adds. “Our message to the states is twofold: one, stop executing people, and two, study these problems that we’ve pointed out.”

The Death Penalty Moratorium Implementation Project plans on continuing its work by assessing death penalty systems of five or six more states. With the ultimate goal of a fair and accurate system in mind, the question of whether or not a “perfect” system is even possible is never far from these legal minds.

“I think whether you’re dealing with the death penalty or any other criminal case, the best system you could devise with all the attributes of fairness will still give you some skewed results,” says University of Pennsylvania Law School professor David Rudovsky, also of the Pennsylvania team. “No matter how well you construct something, there’s something about a human institution that will never be perfect. However, at this point, there is a gap between that goal of getting to what is at least a very, very good system. Can we reach perfection? No. Can we do a much better job? Yes.”

John J. Curtin, Jr., the former president of the ABA once said, “A system that will take life must first give justice." Through its work, the ABA hopes the country will stop as a whole to consider if the death penalty is living up to the second half of that bargain.

Related Resources:

Listen to the ABA press conference on the state assessments

Read the different state assessments

Visit the Death Penalty Information Center


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