The American Bar Association is calling for an immediate ban on the death penalty “unless and until greater fairness and due process prevail.” In a resolution issued February 3, 1997, the ABA decried the administration of the capital punishment in the United States as “seriously flawed” and “a haphazard maze of unfair practices with no internal consistency.” The ABA also cited a growing concern around recently enacted federal and state laws that have limited appeals for death row inmates and funding for death row appeals.

 

AMERICAN BAR ASSOCIATION
SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES 
SECTION OF LITIGATION 

RECOMMENDATION

RESOLVED, That the American Bar Association calls upon each 
jurisdiction that imposes capital punishment not to carry out the death 
penalty until the jurisdiction implements policies and procedures that are 
consistent with the following longstanding American Bar Association 
policies 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: 

(i) Implementing ABA "Guidelines for the Appointment and Performance 
of Counsel in Death Penalty Cases" (adopted Feb. 1989) and Association 
policies intended to encourage competency of counsel in capital cases 
(adopted Feb. 1979, Feb. 1988, Feb. 1990, August. 1996); 

(ii) Preserving, enhancing, and streamlining 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 (adopted Aug. 1982, Feb. 1990); 

(iii) Striving to eliminate discrimination in capital sentencing on the basis 
of the race of either the victim or the defendant (adopted Aug. 1988, Aug. 
1991); and 

(iv) Preventing execution of mentally retarded persons (adopted Feb. 
1989) and persons who were under the age of 18 at the time of their 
offenses (adopted Aug. 1983). 

FURTHER RESOLVED, That in adopting this recommendation, apart 
from existing Association policies relating to offenders who are mentally 
retarded or under the age of 18 at the time of the commission of the 
offenses, the Association takes no position on the death, penalty. 

REPORT

INTRODUCTION

The American Bar Association has adopted numerous policies bearing on 
the manner in which the death penalty should be applied in jurisdictions 
where it exists. These policies were adopted in view of the ABA's 
extensive experience with the administration of the death penalty and in 
light of several ABA-sponsored studies. The policies concern: (1) 
competent counsel in capital cases; (2) proper processes for adjudicating 
claims in capital cases (including the availability of federal habeas 
corpus); (3) racial discrimination in the administration of capital 
punishment; and (4) the execution of juveniles and mentally retarded 
persons. 

The time has now come for the ABA to take additional decisive action 
with regard to capital punishment. Not only have the ABA's existing 
policies generally not been implemented, but also, and more critically, the 
federal and state governments have been moving in a direction contrary to 
these policies. The most recent and most dramatic moves, both strongly 
opposed by the ABA, have come in the form of laws enacted by Congress 
in 1996. Federal courts already are construing one law to significantly 
curtail the availability of federal habeas corpus to death row inmates, even 
when they have been convicted or sentenced to death as a result of serious, 
prejudicial constitutional violations. Another law completely withdraws 
federal funding from the Post-Conviction Defender Organizations that 
have handled many post-conviction cases and that have mentored many 
other lawyers who have represented death row inmates in such 
proceedings. 

These two recently enacted laws, together with other federal and state 
actions taken since the ABA adopted its policies on capital punishment, 
have resulted in a situation in which fundamental due process is now 
systematically lacking in capital cases. Accordingly, in order to effectuate 
its existing policies, the ABA should now call upon jurisdictions with 
capital punishment not to carry out the death penalty until these policies 
are implemented. Of course, individual lawyers differ in their views on the 
death penalty in principle and on its constitutionality. However, it should 
now be apparent to all of us in the profession that the administration of the 
death penalty has become so seriously flawed that capital punishment 
should not be implemented without adherence to the various applicable 
ABA policies. 

BACKGROUND

The backdrop for this Recommendation is the two decades of 
jurisprudence and legislation since the United States Supreme Court 
upheld new death penalty statutes in Gregg v. Georgia,1/ after having 
invalidated earlier death penalty statutes in 1972 in Furman v. Georgia.2/ 
In Furman, the Court believed that then-existing state statutes failed to 
properly balance the need to ensure overall consistency in capital 
sentencing with the need to ensure fairness in individual cases. Four years 
later, in Gregg, the Court concluded that new state statutes' special 
procedural requirements for capital prosecutions provided a means by 
which the states would achieve that balance. 

However, two decades after Gregg, it is apparent that the efforts to forge a 
fair capital punishment jurisprudence have failed.3/ Today, administration 
of the death penalty, far from being fair and consistent, is instead a 
haphazard maze of unfair practices with no internal consistency. To a 
substantial extent, this situation has developed because death penalty 
jurisdictions generally have failed to implement the types of policies 
called for by existing ABA policies. The pervasive unfairness of the 
capital punishment system that has evolved since Gregg has led two of the 
Supreme Court Justices who were part of the majority in Gregg to regret 
having upheld the death penalty's constitutionality. Retired Justice Lewis 
Powell, in a 1991 interview, expressed his doubt whether the death penalty 
could be administered in a way that was truly fair and stated that, in 
retrospect, his greatest regret was that he had voted to uphold the 
constitutionality of capital punishment in McCleskey v. Kemp, 481 U.S. 
279 (1987), and other cases.4/ Justice Harry Blackmun expressed similar 
concerns in his 1994 dissent in McFarland v. Scott: 

When we execute a capital defendant in this country, we rely on the belief 
that the individual was guilty, and was convicted and sentenced after a fair 
trial, to justify the imposition of state-sponsored killing.... My 24 years of 
overseeing the imposition of the death penalty from this court have left me 
in grave doubt whether this reliance is justified and whether the 
constitutional requirement of competent legal counsel for capital 
defendants is being fulfilled.5/ 

The already deplorable state of affairs noted by Justices Powell and 
Blackmun is exacerbated by three other, very recent developments. First, 
although certain states have begun to implement some ABA policies, more 
states are moving in the opposite direction--undermining or eliminating 
important procedural safeguards that the ABA has found to be essential. 

Second, Congress recently enacted legislation that makes it significantly 
more difficult for the federal courts to adjudicate meritorious federal 
constitutional claims in capital cases. Title I of the Anti-Terrorism and 
Effective Death Penalty Act of 1996 establishes deadlines for filing federal 
habeas petitions, places limits on federal evidentiary hearings into the facts 
underlying federal constitutional claims, sets timetables for federal court 
action, limits the evidentiary of appellate review, establishes even more 
demanding restrictions on second or successive applications for federal 
relief, and, in some instances, apparently bars the federal courts from 
awarding relief on the basis of federal constitutional violations where state 
courts have erred in concluding that no such violation occurred. 

While the ABA has consistently supported meaningful habeas corpus 
reforms, this new federal legislation instead dramatically undermines the 
federal courts' capacity to adjudicate federal constitutional claims in a fair 
and efficient manner. Indeed, that may itself be unconstitutional, as the 
ABA already has asserted in an amicus brief. Congress' adoption of the 
1996 Act only underscores the extent of this country's failure to fashion a 
workable and just system for administering capital punishment. 

Third, and also contrary to longstanding ABA policies, Congress has 
ended funding for Post-Conviction Defender Organizations (PCDO's), 
which have handled many capital post-conviction cases and have recruited 
and supported volunteer lawyers in these cases for many indigent death 
row prisoners. The ABA had a major role in supporting the creation of the 
PCDO's. 

Together, these three developments have brought the adjudication of 
capital cases to the point of crisis. Unless existing ABA policies are now 
implemented, many more prisoners will be executed under circumstances 
that are inconsistent with the Supreme Court's mandate, articulated in 
Furman and Gregg, that the death penalty be fairly and justly 
administered. 

The ABA has worked hard to foster the fair and just administration of 
capital punishment. The ABA's Post-conviction Death Penalty 
Representation Project has provided expert advice and counsel to 
jurisdictions attempting to improve the delivery of legal services to death 
row prisoners. In addition, it has recruited more than 400 volunteer 
attorneys to represent indigent death row inmates. The Project also has 
assisted in the creation of PCDO's and strongly opposed the successful 
effort to cut off their federal funding. The ABA has testified in support of 
the Racial Justice Act and actively opposed the kind of habeas corpus 
restrictions enacted in 1996. And the ABA has conducted and supported a 
variety of training programs for lawyers and judges in capital cases and 
has advocated detailed standards for capital defense counsel. Also, various 
ABA groups have sponsored numerous education programs examining the 
fairness of capital punishment as implemented. , 

The ABA's efforts have had some impact. But recent developments have 
made the impact of incompetent counsel and the instances of uncorrected 
due process violations substantially greater, and matters are likely to 
become worse in the future. It is essential that the ABA now forcefully 
urge that executions not occur unless each person being executed has had 
competent counsel and the due process protections that the ABA has long 
advocated. 

1. Competent Counsel

The ABA is especially well positioned to identify the professional legal 
services that should be available to capital defendants and death row 
inmates. The Association has shouldered that responsibility by conducting 
studies and adopting policies dating back nearly twenty years. Seven years 
ago, the ABA recommended that "competent and adequately 
compensated" counsel should be provided "at all stages of capital . . . 
litigation," including trial, direct review, collateral proceedings in both 
state and federal court, and certiorari proceedings in the U.S. Supreme 
Court.6/ To implement that basic recommendation, the ABA said that 
death penalty jurisdictions should establish organizations to "recruit, 
select, train, monitor, support, and assist" attorneys representing capital 
clients. 

Eight years ago, the ABA published the "Guidelines for the Appointment 
and Performance of Counsel in Death Penalty Cases" and urged all 
jurisdictions that employ the death penalty to adopt them.7/ Those 
guidelines call for the appointment of two experienced attorneys at each 
stage of a capital case.8/ Appointments are to be made by a special 
appointing authority or committee, charged to identify and recruit lawyers 
with specified professional credentials, experience, and skills.9/ The 
guidelines make it clear that ordinary professional qualifications are 
inadequate to measure what is needed from counsel in "the specialized 
practice of capital representation." To ensure that the lawyers assigned to 
capital cases are able to do the work required, the guidelines state that 
attorneys should receive a "reasonable rate of hourly compensation 
which... reflects the extraordinary responsibilities inherent in death penalty 
litigation." Concomitantly, counsel should be provided with the time and 
funding necessary for proper investigations, expert witnesses, and other 
support services.10/ 

No state has fully embraced the system the ABA has prescribed for capital 
trials. To the contrary, grossly unqualified and under compensated lawyers 
who have nothing like the support necessary to mount an adequate defense 
are often appointed to represent capital clients. In case after case, decisions 
about who will die and who will live turn not on the nature of the offense 
the defendant is charged with committing, but rather on the nature of the 
legal representation the defendant receives.11/ 

Jurisdictions that employ the death penalty have proven unwilling to 
establish the kind of legal services system that is necessary to ensure that 
defendants charged with capital offenses receive the defense they require. 
Many death penalty states have no working public defender programs, 
relying instead upon scattershot methods for selecting and supporting 
defense counsel in capital cases.12/ For example, some states simply 
assign lawyers at random from a general list--a scheme destined to identify 
attorneys who lack the necessary qualifications and, worse still, regard 
their assignments as a burden. Other jurisdictions employ "contract" 
systems, which typically channel indigent defense business to attorneys 
who offer the lowest bids.13/ Other states use public defender schemes 
that appear on the surface to be more promising, but prove in practice to 
be just as ineffective.14/ 

It is scarcely surprising that the results of poor lawyering are often literally 
fatal for capital defendants. Systematic studies reveal the depth of the 
problems nationwide and thus supply the hard data to support reasoned 
policy-making.15/ Case after case all too frequently reveals the 
inexperience of lawyers appointed to represent capital clients. In Tyler v. 
Kemp16/ and Paradis v. Arave,17/  state trial courts assigned capital cases 
to young lawyers who had passed the bar only a few months earlier; in 
Bell v. Watkins,18/ a state trial court appointed a lawyer who had never 
finished a criminal trial of any kind; and in Leatherwood v. State,19/ yet 
another trial court allowed a third-year law student to handle most of a 
capital trial. 

Other cases demonstrate that defense counsel in capital cases often are 
incapable of handing such cases properly. In Smith v. State,20/ defense 
counsel asked for extra time between the guilt and sentencing phases of a 
capital case in order to read the state death penalty statute for the first 
time. In Frey v. Fulcomer,21/ defense counsel, in purported compliance 
with a state statute, limited his presentation of mitigating evidence. 
Unbeknownst to defense counsel, that statute had been held 
unconstitutional three years earlier precisely because it restricted counsel's 
ability to develop mitigating evidence. In Ross v. Kemp,22/ one defense 
attorney advanced a weak alibi theory, while his co-counsel mounted an 
inconsistent mental incompetency defense that necessarily conceded that 
the defendant had participated in the offense.23/ In Romero v. 
Lynaugh.24/ defense counsel declined to offer any evidence at all during 
the penalty phase of a capital case, and then made the following brief and 
ineffective closing argument: "You are an extremely intelligent jury. 
You've got that man's life in your hands. You can take it or not. That's all I 
have to say." The jury, in its turn, sentenced the defendant to death. 

In Messer v. Kemp,25/ defense counsel presented very little of the 
mitigating evidence available, made no objections at all, then essentially 
told the jury that the death penalty was appropriate. That defendant, too, 
was sentenced to die. In Young v. Kemp,26/ the defense counsel was 
himself so dependent on drugs during trial that, as even he later admitted, 
he mounted only the semblance of a defense. His client received the death 
penalty, but then chanced to see the defense lawyer thereafter in a prison 
yard. The attorney had, in the interim, been convicted and sentenced on 
state and federal drug charges. 

Even when experienced and competent counsel are available in capital 
cases, they often are unable to render adequate service for want of 
essential funding to pay the costs of investigations and expert 
witnesses.27/ In some rural counties in Texas, an appointed attorney 
receives no more than $800 to represent a capital defendant.28/ Similar 
limits are in place in other states. In Virginia, the hourly rate for capital 
defense services works out to about S13.0029/  In an Alabama case, the 
lawyer appointed to represent a capital defendant in a.widely publicized 
case was allowed a total of S500 to finance his work, including any 
investigations and expert services needed. With that budget, it is hardly 
surprising that the attorney conducted no investigation at all.30/ 

Poorly prepared and supported trial lawyers typically do a poor job. When 
they do recognize points to be explored and argued, they often fail to 
follow through in a professional manner. And when they do not recognize 
what needs to be done, they do nothing at all or they take actions that are 
inimical to the needs of their clients. The result of such inadequacies in 
representation is that counsel often fail to present crucial facts. They also 
may fail to raise crucial legal issues, causing their clients to forfeit their 
opportunity to explore those issues later--in any court. In one recent case, 
appointed defense counsel scarcely did anything to represent his client at 
trial and, along the way, neglected to raise three significant constitutional 
claims. The federal court that reviewed the case could not consider any of 
these omitted claims because, under state law, counsel's numerous defaults 
barred their later consideration.31/ 

The same pattern is repeated with respect to the legal services available for 
the appellate and post-conviction stages of capital cases. State appellate 
court standards for adequate representation under state law are 
extraordinarily low. These courts sometimes dispose of capital appeals on 
the basis of inadequate briefs containing only a few pages of argument--
and, in so doing, often rely on defense counsel's "default" at trial to avoid 
considering constitutional claims on the merits.32/ As for post-conviction, 
an ABA Task Force developed an enormous body of evidence in 1990 
demonstrating that prisoners sentenced to death typically receive even less 
effective representation in post-conviction than at the trial stage.33/ The 
Supreme Court has held that there is no constitutional right to counsel in 
post-conviction proceedings, even in capital cases.34/ Although many 
states and the federal government once funded Post-Conviction Defender 
Organizations, which recruited lawyers for death row inmates at the post-
conviction stage and represented others themselves, today many of those 
centers have been forced to close because Congress has eliminated their 
federal funding.35/ 

The federal courts generally have not rectified this situation. The standard 
for effective assistance of counsel under the Sixth Amendment is so 
egregiously low that the potential for relief in federal habeas corpus on 
such grounds is almost always more theoretical then real. The federal 
courts found the "services" rendered in the Romero, Messer, and Young 
cases, cited above, to be "effective. for constitutional purposes--and, 
accordingly, all three prisoners were executed. 

Compounding the effect of incompetent representation of capital 
defendants and death row inmates is improper representation of the state 
by prosecutors inadequately trained in avoiding constitutional violations. 
In describing this combined impact, former Pennsylvania Attorney 
General Ernest Preate said at an ABA Annual Meeting program, "[I]n too 
many capital cases, there is ineffective assistance of counsel on both sides 
.... [T]he defense counsel's ineffective assistance of counsel is not 
necessarily a mistake that the defense counsel originally made, but a 
mistake by the prosecutor. The prosecutor did something he or she 
shouldn't have done and the defense counsel failed to object or failed to 
take advantage of it...."36/ Unfortunately, relief rarely is granted under any 
of the circumstances described above. 

II. Proper Processes

The ABA consistently has sought to ensure that adequate procedures are in 
place to determine whether a capital sentence has been entered in violation 
of federal law. No other organization has monitored the federal habeas 
system more closely, developed greater expertise regarding that system's 
strengths and weaknesses, or offered more detailed prescriptions for 
reform. 

Fourteen years ago, the ABA publicly opposed three bills then pending in 
Congress that would have dramatically restricted the federal courts'ability 
to adjudicate state prisoners' habeas claims. At the same time, the ABA 
proposed alternatives that would have streamlined habeas litigation 
without undermining the federal courts' authority and responsibility to 
exercise independent judgment on the merits of constitutional claims.37/ 

Since that time, the ABA has been deeply involved in the national debate 
over federal habeas--particularly in capital cases. The ABA task force that 
studied the situation in depth created a solid scholarly foundation for its 
work, then received written and oral testimony from knowledgeable 
individuals and organizations at hearings in several cities.38/ In 1990, the 
ABA House of Delegates adopted a set of recommendations for improving 
current law that were based upon the Task Force's work.39/ The 
recommendations included the principles that a death row prisoner should 
be entitled to a stay of execution in order to complete one round of post-
conviction litigation in state and federal court; that the federal courts 
should consider claims that were not properly raised in state court if the 
reason for the prisoner's default was counsel's ignorance or neglect; and 
that a prisoner should be permitted to file a second or successive federal 
petition if it raises a new claim that undermines confidence in his or her 
guilt or the appropriateness of the death sentence. 

Regrettably, none of these recommendations has been generally adopted. 
In fact, the Supreme Court has denied death row prisoners the very 
opportunities for raising constitutional claims that the ABA has insisted 
are essential. Prisoners have not been entitled even to a single stay of 
execution to maintain the status quo long enough to complete post-
conviction litigation.40/ The federal courts typically have refused to 
consider claims that were not properly raised in state court, even if the 
failure to raise them was due to the ignorance or neglect of defense 
counsel.41/ And prisoners have often not been allowed to litigate more 
than one petition, even if they have offered strong evidence of egregious 
constitutional violations that they could not have presented earlier.42/ 

The consequence of these legal tangles has been that meritorious 
constitutional claims often have gone without remedy. Contrary to popular 
belief, most habeas petitions in death penalty cases do not rest on frivolous 
technicalities. As Professor James S. Liebman has reported, in 40 percent 
of all capital cases, even in the face of all the procedural barriers, death 
row inmates still have been able to secure relief due to violations of their 
basic constitutional rights.43/ The percentage securing relief would be 
substantially higher if the federal courts had considered all death row 
inmates' claims on their merits. 

Yet, in 1996, Congress enacted legislation that will make it even more 
difficult for the federal courts to adjudicate federal claims in capital cases. 
This new law, which the ABA vigorously opposed, establishes deadlines 
for filing federal habeas petitions, limits on federal evidentiary hearings 
into the facts underlying federal claims, timetables for federal court action, 
limits on the availability of appellate review, and even more demanding 
restrictions on second or successive applications from a single petitioner. 
The new law also contains a provision that, according to the en banc 
Seventh Circuit (and contrary to the ABA's position as amicus curiae), 
prevents a federal court from awarding relief on the basis of a claim that 
the federal court finds to be meritorious if it concludes that the state court 
that rejected the claim was not "unreasonably" wrong in doing so.44/ 

III. Race Discrimination

In 1988, the ABA adopted a policy of striving to eliminate "discrimination 
in capital sentencing on the basis of the race of either the victim or the 
defendant.45/ Nevertheless, longstanding patterns of racial discrimination 
remain in courts across the country. 

Numerous studies have demonstrated that defendants are more likely to be 
sentenced to death if their victims were white rather than black.46/ Other 
studies have shown that in some jurisdictions African Americans tend to 
receive the death penalty more often than do white defendants.47/ And in 
countless cases, the poor legal services that capital. clients receive are 
rendered worse still by racist attitudes of defense counsel.48/ 

Justice Blackmun lamented the Court's failure to fashion an effective 
means of preventing the "biases and prejudices that infect society 
generally" from influencing "the determination of who is sentenced to 
death."49/ After years of watching race play so large a role in the 
administration of capital punishment, he concluded, in pan for that reason, 
that he no longer could find any execution consistent with the 
Constitution. The ABA need not go so far in order to resolve, as a matter 
of ABA policy, that executions should cease until effective mechanisms 
are developed for eliminating the corrosive effects of racial prejudice in 
capital cases. 

The Supreme Court, in rejecting a constitutional challenge to the systemic 
pattern of racial discrimination in capital sentencing, invited legislative 
action to deal with this situation.50/ Thereafter, the ABA, in conformance 
with a resolution adopted by the House of Delegates in August 1988, 
supported enactment of the Racial Justice Act, a measure designed to 
create a remedy for such racial discrimination.51/ Although the House of 
Representatives twice has approved the Racial Justice Act, the full 
Congress has not enacted it. Accordingly, these patterns of racial 
discrimination remain unrectified. Ironically, Justice Powell, the author of 
the Supreme Court's  5-4 decision rejecting the constitutional challenge 
discussed above, has now indicated that he regrets his participation in that 
decision (as well as in other decisions upholding the death penalty) more 
than anything else during his tenure on the court.52/ 

IV. Execution of Mentally Retarded Individuals and Juveniles 

The ABA has established policies against the execution of both persons 
with mental retardation, as defined by the American Association of Mental 
Retardation,53/ and persons who were under the age of 18 at the time of 
their offenses.54/ Nevertheless, the Supreme Court has upheld the 
constitutionality of executions in both of those instances.55/ While many 
states now bar executions of the retarded, other states continue to execute 
both retarded individuals and, on occasion, offenders who were under 18 
at the time they committed the offenses for which they were executed.56/ 

CONCLUSION

As former American Bar Association President John J. Curtin, Jr., told a 
congressional committee in 1991, "Whatever you think about the death 
penalty, a system that will take life must first give justice." 57/ This 
recommendation would not commit the ABA to a policy regarding the 
morality or the advisability of capital punishment per se. Rather, this 
Recommendation would reinforce longstanding Association policies that 
seek to bring greater fairness to the administration of the death penalty. 
Those policies rest firmly on the special competence and experience that 
only members of the legal profession can bring to bear. 

For many years, the ABA has conducted studies, held educational 
programs, and produced studies and law review articles58/ about the 
administration of the death penalty. As a result of that work, the 
Association has identified numerous, critical flaws in current practices. 
Those flaws have not been redressed; indeed, they have become more 
severe in recent years, and the new federal habeas law and the refunding of 
the PCDO's have compounded these problems. This situation requires the 
specific conclusion of the ABA that executions cease, unless and until 
greater fairness and due process prevail in death penalty implementation. 

Respectfully submitted,

February 1997

Leslie A. Harris Chair,
Section of Individual Rights and Responsibilities 

GENERAL INFORMATION FORM

Submitting Entity: SECTION OF INDIVIDUAL RIGHT' AND 
RESPONSIBILITIES 

Submitted By: Leslie A. Harris, Chair

1. Summary of Recommendation(s).

Under this Recommendation, the Association would call upon each 
jurisdiction with capital punishment not to carry out the death penalty until 
the jurisdiction implements policies and procedures that are consistent 
with longstanding American Bar Association policies 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. 

Specifically, the proposed resolution urges that the policies and procedures 
implemented by each jurisdiction be consistent with longstanding 
American Bar Association policies concerning (1) implementing ABA 
"Guidelines for the Appointment and Performance of Counsel in Death 
Penalty Cases" (adopted Feb. 1989) and Association policies intended to 
encourage competency of counsel in capital cases (adopted Feb. 1979, 
Feb. 1988, Feb. 1990, Aug. 1996); (2) preserving, enhancing, and 
streamlining 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 (adopted Aug. 
1982, Feb. 1990); (3) striving to eliminate discrimination in capital 
sentencing on the basis of the race of either the victim or the defendant 
(adopted Aug. 1988, Aug. 1991); and (4) preventing execution of mentally 
retarded persons (adopted Feb. 1989) and persons who were under the age 
of 18 at the time of their offenses (adopted Aug. 1983). 

In adopting this Recommendation, the Association would take no position 
on the death penalty, apart from existing Association policies relating to 
offenders who are mentally retarded or under the age of 18 at the time of 
the commission of the offenses. 

Approval by Submitting Entity. The Council of the Section of Individual 
Rights and Responsibilities approved the resolution at its fall meeting on 
Nov. 8, 1996. The Council of the Section of Litigation approved the 
resolution at its fall meeting on Sept. 27, 1996. 

3. Has this or a similar recommendation been submitted to the House or 
Board previously? Recommendations previously have been submitted to 
and approved by the House of Delegates regarding specific aspects of 
capital cases and representation (see question 4), but there has not been a 
recommendation submitted calling for jurisdictions with capital 
punishment not to carry out the death penalty until specific policies are 
implemented. In August 1976, a recommendation urging the states to 
repeal all laws providing for the imposition of the death penalty was 
submitted, but withdrawn. This recommendation also was submitted in 
February 1977 and was not approved. The present recommendation, 
however, addresses only due process and fairness issues in the 
implementation of the death penalty and adherence by federal and state 
governments to long-standing ABA policies. 

4. What existing Association policies are relevant to this recommendation 
and how would they be affected by its adoption- The ABA has policies 
opposing the imposition of the death penalty on juveniles (1983) and 
persons with mental retardation (1989); urging the appointment of 
experienced (1985), competent and adequately compensated trial counsel 
during litigation of death penalty cases (1990); and urging the adoption of 
Guidelines for the Appointment and Performance of Counsel in Death 
Penalty cases (1989). The ABA has policy urging greater fairness in 
federal habeas corpus proceedings (1990), such as stays of execution 
during one full round of post-conviction litigation, consideration of claims 
not raised in state court because of the ignorance or neglect of counsel, and 
consideration of a successive petition, including a claim undermining 
confidence in the prisoner's guilt or his death sentence. The ABA also has 
adopted policies supporting utilization of certain provisions pertaining to 
representation in federal habeas corpus death penalty proceedings (1988); 
supporting in principle legislation that would prevent or minimize the 
disproportionate effect of federal death penalty legislation on Native 
Americans (1991); and supporting legislation that would strive to 
eliminate racial discrimination in carrying out capital punishment (1988). 
The most recent policy adopted by the Association urges the amendment 
of federal law to provide military capital prisoners the same opportunity 
for assistance of counsel in post-conviction habeas corpus relief as is now 
provided by federal law for persons sentenced to death in the civilian 
courts of this country (1996). 

The proposed resolution supports federal and state implementation of 
these policies to address longstanding fairness and due process concerns 
on which the need for action is increasingly urgent. 

5.What urgency exists which requires action at this meeting of the House? 

The federal Anti-Terrorism and Effective Death Penalty Act, enacted in 
1996, includes provisions that severely undermine death row inmates' 
ability to use federal habeas corpus procedures to challenge their 
unconstitutional convictions or death sentences. Death row inmates have 
been subjected to numerous due process violations, particularly in state 
courts, in the litigation and appeal of capital punishment cases. The new 
limitations on the habeas corpus process will result in accelerated 
executions and preclude the federal courts from considering many 
meritorious claims of due process violations. In light of the fact that 40 
percent of death row inmates' federal habeas corpus challenges have 
succeeded because state courts have failed to rectify due process violations 
in death penalty cases, and in light of the new significant restrictions on 
federal court review of such claims, an urgent situation exists in the 
litigation of capital cases. This Association, as an organization of lawyers 
with particular expertise on due process and litigation issues, has an 
obligation to address the problem now. The urgency is all the greater 
because of Congress' complete defunding in 1996 of the post-conviction 
defender organizations that had mentored lawyers handling federal habeas 
cases and had handled many such cases themselves; the ABA has long 
supported the ABA Post-Conviction Death Penalty Representation Project, 
which has played a major role in the creation of these defender 
organizations. Moreover, these recent developments affecting state post-
conviction and federal habeas corpus proceedings have occurred despite 
the states' general failure to implement the ABA's policies regarding 
appropriate counsel at the trial and direct appeal stages of capital cases. 

The ABA's adoption of policy calling upon each jurisdiction with capital 
punishment not to carry out the death penalty until procedures are 
implemented that substantively address due process violations would 
increase the focus on the need to deal with this fundamental failure in the 
administration of justice. 

6.Status of Legislation. (If applicable.) As noted above, the new Anti-
Terrorism and Effective Death Penalty Act substantially curtails federal 
habeas corpus and eliminates funding for post-conviction defender 
organizations. 

7.Cost to the Association. (Both direct and indirect costs.) Adoption of the 
Recommendation would result in only minor indirect costs associated with 
Governmental Affairs and Section staff time devoted to the policy subject 
matter as pan of the staff members' overall responsibilities. 

8.Disclosure of Interest. (If applicable.) N/A 

9.Referrals.

The proposed resolution was sent to the following entities prior to 
submission: Section of Litigation Criminal Justice Section Commission on 
Physical and Mental Disability Law 

The Litigation Section already is a co-sponsor; the Criminal Justice 
Section will consider the Recommendation at its Nov. 22-24 Council 
meeting; the Commission was scheduled to consider the proposal by 
telephone and poll prior to the February 1997 meeting of the House of 
Delegates. 

Following its submission, notice of this Report with Recommendation will 
be provided to all other Sections, Divisions, Forums, Committees and state 
bar associations, as well as affiliated organizations with particular interest 
in the issue area. 

10.Contact Persons. (Prior to the meeting.) 

Estelle H. Rogers
IRR Section Delegate
3252 S Street, N.W.
Washington, D.C. 20007
202/973-6302

Ronald J. Tabak
Chair, IRR Death Penalty Committee
919 Third Avenue, 31st Floor
New York, NY 10022-3897
212/735-2226

Virginia E. Sloan
Chair, IRR Criminal Justice Committee
1563 44th Street, N.W.
Washington, D.C. 20007
2021338-1608

Judah Best
Litigation Section Delegate
555 13th Street, N.W.
Suite IIOO-E
Washington, D.C. 20004-1109
202/383-8060

Benjamin R. Civiletti
Litigation Section Delegate
Venable & Baetjer
Suite 1800
Merc Bank Trust Bldg.
2 Hopkins Plaza
Baltimore, MD 21201-2930
410/244-7600

Louise A La Mothe
Litigation Section Delegate
1875 Century Park East, 23rd Floor
Los Angeles, CA 90067
310/201-2100

Ronald L. Olson
Litigation Section Delegate
35th Floor, 355 S. Grand Avenue
Los Angeles, CA 90071-1560213/683-9111

Penny Wakefield
IRR Section Director
740 15th Street
Washington, D.C. 2005-1009
202/662-1030

Contact Person. (Who will present the report to the House.) Estelle H. 
Rogers IRR Section Delegate 3252 S Street, N.W. or Litigation Section 
Delegate Washington, D.C. 20007 202n73-6302 

Contact Person Regarding Amendments to This Recommendation. (Are 
there any known proposed amendments at this time? If so, please provide 
the name, address, telephone, fax and ABA/net number of the person to 
contact below.) 

There are no known amendments at this time. 


ENDNOTES

1/ 428 U.S. 153 (1976).

2/ 408 U.S. 238 (1972).

3/ See Carol S. Steiker & lordan M. Steiker, Sober Second Thoughts: 
Reflections on Two Decades of Constitutional Regulation of Capital 
Punishment, 109 Harv. L. Rev. 355, 357 (1995)(reporting that "[v]irtually 
no one thinks that the constitutional regulation of capital punishment has 
been a success"). See also James S. Liebman & Jonathan M. Moses, Fatal 
Distortion: The Chronic Making and Unmaking of Death Penalty Law 
(publication forthcoming). 

4/ See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 451-
52 (1994) (quoting Justice Powell). 

5/ 114 S. Ct. 2785, 2790 (1994).

6/ Resolution of the House of Delegates, Feb. 1990. 

7/ Resolution of the House of Delegates, Feb. 1989. 

8/ The ABA previously had urged the federal government to adopt similar 
procedures and standards for counsel appointed to represent death row 
prisoners in federal habeas corpus proceedings. Resolution of the House of 
Delegates, Feb. 1988. Before that, the ABA had urged the U.S. Supreme 
Court and the Congress to provide for competent counsel to handle 
certiorari proceedings and petitions for clemency before the Court. 
Resolution of the House of Delegates,, Feb. 1979. 

9/ In addition, the guidelines set forth the way in which counsel in a 
capital case should perform various defense functions, from plea 
negotiations, through jury selection, the trial and sentencing phases, and 
post-conviction proceedings. 

10/ In August 1996, the ABA adopted a policy regarding the appropriate 
representation of military defendants facing execution. To date, the 
military has failed to implement this policy. 

11/ Marcia Coyle, et al., Fatal Defense: Trial and Error in the Nation's 
Death Belt, Nat'l L.J., June 11, 1990 (reporting the conclusions of an 
extensive six-state survey: capital trials are "more like a flip of the coin 
than a delicate balancing of the scales" because defense counsel are "ill 
trained, unprepared. . . [and] grossly underpaid"). 

12/ See Stephen B. Bright, Counsel for the Poor: The Death Sentence Not 
for the Worst Crime, But for the Worst Lawyer, 103 Yale L.J. 1835 
(1994). 

13/ Richard Klein, The Emperor Gideon Has No Clothes: The Empty 
Promise of the Constitutional Right to Effective Assistance of Counsel, 13 
Hastings Const. L.Q. 625, 679-680 ( 1986). 

14/ See Bright, supra note 12, at 1849-1852, summarizing the current 
situation as follows: 

The structure of indigent defense not only varies among states, it varies 
within many states from county to county. Some localities employ a 
combination of programs. All of these approaches have several things in 
common. They evince the gross underfunding that pervades indigent 
defense. They are unable to attract and keep experienced and qualified 
attorneys because of lack of compensation and overwhelming workloads. 
Just when lawyers reach the point when they have handled enough cases to 
begin avoiding basic mistakes, they leave criminal practice and are 
replaced by other young, inexperienced lawyers who are even less able to 
deal with the overwhelming caseloads. Generally, no standards are 
employed for assignment of cases to counsel or for the performance of 
counsel. And virtually no resources are provided for investigative and 
expert assistance or defense counsel training. 

The situation has further deteriorated in the last few years. This is largely 
due to the increased complexity of cases and the increase in the number of 
cases resulting from expanded resources for police and prosecution and the 
lack of a similar increase, and perhaps even a decline, in funding for 
defense programs. Id. (citations omitted). 

Moreover, at an ABA Annual Meeting program in 1995, Scharlette 
Holdman described case after case of incompetent representation by 
counsel appointed by judges in California and other Western states, in 
which compensation is typically greater than that in most other states with 
capital punishment. See Holdman in Is There Any Habeas Left in this 
Corpus?, 27 Loyola U. Chicago L.J. 524, 581 (1996). Thus, as the ABA 
has recognized, the problem is not merely underfunding. It is also the 
appointment by judges of attorneys who lack either the expertise or the 
experience necessary to represent a capital defendant effectively. 

15/ Over the years, both the ABA and local bar and legislative groups have 
commissioned such studies. In one instance, illustrative of other states 
practices as well, researchers found that Texas typically does not use 
central appointing authorities to choose counsel in death penalty cases, 
does not monitor the performance of assigned counsel in capital cases, and 
does not adequately compensate appointed counsel or reimburse them 
sufficiently for support services. The Spangenberg Group, A Study of 
Representation in Capital Cases in Texas (1993). 

16/ 755 F.2d 741 (1 Ith Cir.), cert. denied, 474 U.S. 1026 (1985). 

17/ 954 F.2d 1483 (9th Cir. 1992).

18/ 692 F.2d 999 (5th Cir. 1982).

19/ 548 So.2d 389 (Miss. 1989).

20/ 581 So.2d 497 (Ala. Crim. App. 1990). 

21/ 974 F.2d 348 (3d Cir. 1992).

22/ 393 S.E.2d 244 (Ga. 1990).

23/ See Bright, supra note 12 (listing these illustrative cases and dozens 
more). 

24/ 884 F.2d 871 (5th Cir. 1989).

25/ 831 F.2d 946 (1 Ith Cir. 1987).

26/ No. 85-98-2-MAC (M.D. Ga. 1985).

27/ Spangenberg Group, supra note 15, at 159; see also Anthony Paduano 
& Clive A.S. Smith, The Unconscionability of Sub-Minimum Wages Paid 
Appointed Counsel in Capital Cases, 43 Rutgers L. Rev. 281 
(1991)(providing a national survey). 

28/ Marianne Lavelle, Strong Law Thwarts Lone Star Counsel, Nat'l L.J., 
June 11, 1990, at 34. In one celebrated Texas case, the FiRh Circuit Court 
of Appeals noted that an appointed attomey hat received only S11.84 per 
hour in a capital case and, at that price, had rendered particularly dreadful 
service to his indigent client. That, said the court, explained much of the 
problem. "[T]he justice system got only what it paid for. " Martinez-
Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992). 

29/ Richard Klein, The Eleventh Commandment: Thou shalt Not Be 
Compelled To Render the Ineffective Assistance of Counsel, 68 Ind. L.J. 
363, 366 (1993). 

30/ Deposition of Richard Bell, at 24-25, in Grayson v. State (Cir. Ct. 
Shelby County, Ala., Oct. 10, 1991). The state payment limit is now 
Sl,OOO. 

31/ Weeks v. Jones, 26 F.3d 1030 (I Ith Cir. 1994). 

32/ See Bright, supra note 12, at 1843 & n.55. 

33/ American Bar Ass'n, Toward a More Just and Effective System of 
Review in State Death Penalty Cases, 40 Arn. U. L. Rev. I 
(1990)[hereaRer cited as Toward a More Just and Effective Svstem]. 34 
Murrav v. Giarratano, 492 U.S. I (1989). 

35 See generally, The Crisis in Capital Representation, The Record, 
Association of the Bar of the City of New York Vol. 51 169, 187-191 
(March 4, 1996)[hereafrer cited as Crisis]. The PCDO's were extremely 
effective. In 1989, Chief Judge Tjoflat of the United States Court of 
Appeals for the Eleventh Circuit told the ABA Task Force that the 
Resource Centers were ' "indispensable." Toward a More Just and 
Effective System, supra note 33, at 73. In 1994, Judge Arthur L. Alarcon 
of the Court of Appeals for the Ninth Circuit wrote that the PCDO's were 
"critical" to the efficient processing of capital cases. Memorandum to 
Judges Cox and Cedaroaum, Dec. 7, 1994, cited in Crisis, supra at 188-
189. Nevertheless, they were defunded. 

36 Emest Preate, in The Death of Fairness? Counsel Competency & Due 
Process in Death Penalty Cases, 31 Houston L. Rev. 1105, 1120-21 
(1994). 37/ Resolution of the House of Delegates, Feb. 1982. 

38/ See Toward a More Just and Effective System, supra note 33. 

39/ Id.; Resolution of the House of Delegates, Feb. 1990. 

40/ See McFarland v. Scott, 114 S.Ct. 2568 (1994). 

41/ E.g., Coleman v. Thompson, 111  S.Ct. 2546 (1991). 

42/ E.g., McCleskey v. Zant, 499 U.S. 467 ( 1991). Moreover, the 
Supreme Court has developed numerous other door-closing doctrines that 
restrict death row prisoners' access to the federal courts for habeas corpus 
adjudication. See The Death of Fairness? Counsel Competency and Due 
Process in Death Penalty Cases, 31 Houston L. Rev. 1105 ( 1994). 

43/ Memorandum of James S. Liebman, Nov. 22, 1995. 

44/ Lindh v. Murphy, 96 F. 2d 856, 870 (7th Cir. 1996). For a summary 
and analysis of the various new habeas corpus provisions, see Yackle, A 
Primer on the New Habeas Corpus Statute, 44 Buffalo Law Rev. 381 
(1996). 

45/ Resolution of the House of Delegates, Aug. 1988. In addition, the 
ABA has urged Congress to "prevent or minimize any disproportionate 
effects of general federal death penalty legislation on Native Americans 
subject to federal jurisdiction." Resolution of the House of Delegates, 
Aug. 1991. 

46/ See Tabak, Is Racism Irrelevant? Or Should the Fairness in Death 
Sentencing Act Be Enacted to Substantially Diminish Racial 
Discrimination in Capital Sentencing?, 18 N.Y.U. Rev. L. & Soc. Change 
777, 780-83 (1990-91) (summarizing various studies) (this law review 
article is an adaptation of the ABA's testimony in support of the proposed 
Racial Justice Act); U.S. GENERAL ACCOUNTING OFFICE, DEATH 
PENALTY SENTENCING: RESEARCH INDICATES A PATTERN OF 
RACIAL DISPARITIES (Feb. 1990), reprinted in 136 CONG. REC. 
S6889-90 (daily ed., May 24, 1990); L. Ekstrand and H. Ganson, in panel 
discussion on Race and the Death Penalty, in The Death Penalty in the 
Twenty-First Century, 45 Amer. U. L. Rev. 239, 320-23, 341, 345, 347, 
348 (1995). See also Samuel R. Gross & Roben Mauro, Death and 
Discrimination: Racial Disparities in Capital Sentencing (1989). In 
Kentucky, approximately 1,000 African Americans have been murdered 
over the past 20 years. Yet none of the prisoners on that state's death row 
is there for having killed a black victim. Letter from the Death Penalty 
Information Center, April 2, 1996. 

47/ E.g., David C. Baldus, George Woodworth & Charles A. Pulaski, Jr., 
Equal Justice and the Death Penalty: A Legal and Empirical Analysis 399 
(1990). 

48/ Sadly, defense attorneys who shrink from rocking the boat locally still 
may fail, even in this day and age, to object to jury selection procedures 
that exclude African Americans from service. See Bright, supra note 12, at 
1857, citing Gates v. Zant, 863 F.2d 1492, 1497-1500 (11th Cir.), cert. 
denied, 493 U.S. 945 (1989)(denying relief in such an instance). Cases in 
which defense attorneys use racial slurs in reference to their clients are 
also all too common. See Bright, supra note 12, at 1865, citing Transcript 
of Opening and Closing Arguments at 39, State v. Dungee, Record 
Excerpts at 102, (11th Cir.)(No. 85-8202), decided sub nom. Isaacs v. 
Kemp, 778 F.2d 1482 (11th Cir. 1985), cert denied, 476 U.S. 1164 (1986), 
showing the following opening argument: 

You have got a little ole nigger man over there that doesn't weigh over 135 
pounds. He is poor and he is broke. He's got an appointed lawyer....He is 
ignorant. I will venture to say he has an IQ of not over 80. 

Unsurprisingly, the jury that heard that statement from defense counsel 
later sentenced the defendant to death. 

49/ Callins v. Collins, 114 S.Ct. 1127, 1135 (1994) (dissenting opinion). 
50/ See McCleskey v. Kemp, 481 U.S. 279, 319 (1987). 

51/ See Tabak, supra n. 46.

52/ See JEFFRIES, supra n. 4, at 451-452. 

53/ Resolution of the House of Delegates, Feb. 1989. 

54/ Resolution of the House of Delegates, Aug. 1983. 

55/ Penry v. Lynaugh, 492 U.S. 302 (1989)(refusing to hold that the 
execution of a mentally retarded prisoner violated the eighth amendment); 
Stanford v. Kentucky, 492 U.S. 361 (1989) (refusing to hold that the 
execution of prisoners who were 16 and 17 years of age at the time of their 
offenses violated the eighth amendment). 

56/ Emily Reed, The Penry Penalty: Capital Punishment and Offenders 
with Mental Retardation 39 (1993)(reporting that mentally retarded 
prisoners account for 12% to 20% of the population on death row); 
Raymond Paternoster, Capital Punishment in America 95 (1991)(reporting 
that near the end of 1990 there were 32 death row prisoners who had been 
under 18 years of age at the time of their offenses); Victor Streib, Report 
(Sept. 19, 1995)(reporting 42 such prisoners only five years later). Since 
1973, 140 death sentences have been imposed on juvenile offenders. Letter 
from the Death Penalty Information Center, April 2, 1996. 57/ Hearings 
before the Subcommittee on Civil and Constitutional Rights of the 
Committee on the Judiciary, U.S. House of Representatives, 102d Cong., 
1st Sess. at 447 (1991). 

58/ See, e.g., Is There Any Habeas Left in This Corpus?, 27 Loyola U. 
Chicago L. J. 524 (1996); The Death of Fairness?, see supra note 42; 
Politics and the Death Penalty: Can Rational Discourse and Due Process 
Survive the Perceived Political Pressure?, 21 Fordham Urban L. J. 239 
(1994).