ABA keeps execution fight going

By Al Knight Denver Post columnist
Article Last Updated: 10/30/2007 04:41:32 PM MDT

The American Bar Association has been calling for a nationwide moratorium on executions since 1997, so it was no surprise when it renewed that call this week.

The ABA has, in fact, had a committee working since 2001 to obtain a nationwide moratorium. This year, the ABA tried to bolster its position by announcing the results of a three-year study that covered eight different states. Four of the eight — Florida, Alabama, Georgia and Tennessee — are in the South. The other four are Indiana, Ohio, Pennsylvania and Arizona.
The ABA claimed it found a "deeply flawed" system lacking in fairness and accuracy.

It's a little difficult to take this conclusion at face value. After all, the association was saying the same things way before it launched the eight-state study. It would have really been news if the organization had found something that caused it to reverse its long-standing call for a moratorium on executions.

Still there is value in the study. Few people would be opposed to the preservation of all evidence, including DNA, in capital cases either until the person is freed from prison or executed. In fact, it is fair to say that most people wouldn't oppose keeping the evidence forever.
The ABA is also right to complain that some states still don't require interviews with suspects in capital cases to be filmed and recorded. It is on less firm ground when it complains about minor variations in the way states handle cases involving the retarded or those suffering from mental illness.

The study is particularly disappointing in the way it handles claims that there are racial disparities in the application of the death sentence. At times, it emphasizes the race of the convicted killer and at other times says the disparities show up mostly in relation to the victim. In other words, a person has a higher chance of being executed for killing a white victim.
In any case, because the ABA did such a poor job defining the racial problem, it was unable to offer a coherent suggestion on what to do about it beyond studying the issue further.

ABA wants states to stop

What is most disturbing about the ABA's overall position is that it basically bypasses the traditional way that problems should be addressed in this country. The association doesn't call out for the various legislatures to reconsider the imposition of the death penalty. It doesn't claim the innocent are being executed as a justification for a moratorium. It simply calls for a state to stop executing murderers until they have studied the justice system.

Florida and California have moratoriums, but neither was imposed for general reasons. In Florida, a "botched" execution led to the governor calling for a review of lethal-injection procedures. In California, the moratorium was ordered by a federal judge over lethal injection issues.

Later this term, the U.S. Supreme Court will hear arguments in a case challenging the lethal injection procedure on the grounds it violates the cruel and unusual clause of the Eighth Amendment to the U.S. Constitution. It would be convenient to believe that the pending case will settle the death penalty controversy once and for all, but any sensible person knows better.
Other cases will develop over the question of whether the punishment fits the crime. The ABA says every state should have a method to determine that like crimes are being punished.

That recommendation may be sound, but there is no reliable national standard — and perhaps there shouldn't be. A murderer who killed almost 50 victims is currently serving a life term in one state, while others with single victims have been executed.

This is clearly not "fair," but it doesn't mean that all executions must be stopped.
Governors have no business imposing moratoriums on executions absent specific provocation. Those who don't like the death penalty should do the heavy lifting necessary to repeal the laws instead of using organizations like the ABA to obtain what they can't get by traditional and more legitimate means.

Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post's editorial-page staff. His column appears twice a month.