ABA Study: State Death Penalty Systems Deeply Flawed

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ABA Study: State Death Penalty Systems Deeply Flawed

Based on Multi-state Findings, Bar Association Renews Call for Nationwide Moratorium on Executions

WASHINGTON, D.C., Oct. 29, 2007— The American Bar Association today released the findings from their three-year study on state death penalty systems and called for a nationwide moratorium on executions. Based on a detailed analysis of death penalty systems in eight sample states, the ABA Death Penalty Moratorium Implementation Project identified key problems common to the states studied, including major racial disparities, inadequate indigent defense services and irregular clemency review processes – making their death penalty systems operate unfairly.

“After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed,” said Stephen F. Hanlon, chair of the ABA Death Penalty Moratorium Implementation Project. “The death penalty system is rife with irregularity – supporting the need for a moratorium until states can ensure fairness and accuracy.”

While the ABA takes no position for or against the death penalty itself, since 1997 it has urged a moratorium in each jurisdiction that provides for capital punishment until the state conducts a thorough and exhaustive study to determine whether its system meets legal standards for fairness and due process.

For the past three years, teams of local legal experts have assessed their states using 93 protocols developed by the ABA as measuring points of the due process and fairness the state provides. The protocols have not been adopted as ABA policy, but are based on association policies calling for due process and fairness.

Of the eight state teams, five urged their own governmental leaders to impose a temporary halt on executions within the state until more complete analyses could be completed. The five states were Alabama, Georgia, Indiana, Ohio and Tennessee. Arizona, Florida and Pennsylvania's teams did not call for moratoria.

Several serious problems were found in many of the states:

• Every state studied appears to have significant racial disparities in imposing the death penalty, particularly associated with the race of the victim, but little has been done to rectify the problem.
• Judicial elections mean that electoral pressures may influence judicial decisions, and candidates for judges in many states discuss their views of the death penalty during campaigns.
• States often do not have policies in place to ensure that lawyers representing people with mental retardation or mental illness fully appreciate the significance of their clients’ mental disabilities. And states do not formally commute death sentences when an inmate is found incompetent, and they do not require instruction of jurors on the distinction between insanity as a defense and reliance on a mental disorder or disability to mitigate sentencing.
• In clemency proceedings, most states fail to specify the type or breadth of review, or to require the clemency decisionmaker to explain reasons for their decisions.
• Most states have had at least one serious incident of mistakes or fraud in crime laboratories. They often do not require that crime laboratories and medical examiner offices be accredited, or that crime laboratories make their standards and procedures public. The laboratories are often seriously underfunded and do not use the most sophisticated testing procedures.
• With respect to collection, preservation and testing of biological evidence, most states do not require preservation of the evidence through the entire legal process until the accused is either released from prison or executed. As scientific testing capability advances, evidence that could prove innocence may be destroyed. Testing statutes create onerous procedural hurdles impeding the ability of convicted persons to file for and obtain DNA testing.
• States do not require law enforcement agencies to adopt procedures comporting with national best practices on identification and interrogation, and most states do not require law enforcement agencies to videotape or audiotape custodial interrogations in murder cases.
• States are not establishing policies or requiring prosecutors' offices to establish policies on exercise of prosecutorial discretion, or on evaluating cases that rely on evidence such as testimony of jailhouse snitches, or on eyewitness identification or confessions, considered as less reliable evidence. Many states don’t require specialized training for capital cases, and most states have not disciplined the prosecutors even when serious misconduct has been found.
• Some states fail to provide for appointment of defense counsel in post-conviction proceedings, and all states fail to provide for appointment of counsel in clemency proceedings. Capital indigent defense is generally significantly underfunded, and compensation paid to appointed capital defense attorneys is often inadequate. Many states require only minimal training and experience for defense counsel in capital cases.
• Some states do not require a meaningful proportionality review to determine whether death sentences are imposed on similarly situated defendants and few, if any, maintain databases adequate to achieve such a review.
• With respect to post-conviction review, many states provide unreasonably short time periods in which to petition the courts for review, and most states allow judges in such proceedings to adopt findings of fact and conclusions of law proposed by one party, potentially undermining the judge’s exercise of independent judgment. Some states assign post-conviction review of whether errors were made at trial to the same judge who presided at trial, and many states make it difficult to obtain discovery, or evidentiary hearings.
• Jury instructions often are poorly written and poorly conveyed, making it difficult for jurors to understand their roles and responsibilities. States often fail to provide instructions in writing, and instructions fail to define important terms, or to tell jurors that they may impose life sentences even if there are no mitigating factors or where aggravating factors are proven beyond a reasonable doubt.

The teams researched 12 areas: collection, preservation and testing of biological evidence; law enforcement identification and interrogation procedures; crime laboratory and medical examiner office standards and procedures; prosecutorial professionalism; defense services; direct appeals; state post-conviction proceedings; clemency; jury instructions; judicial independence; treatment of racial and ethnic minorities; and mental retardation and mental illness.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.