ABA Calls for a Halt to Executions

In a ground-breaking move, the American Bar Assn. on Monday called for an immediate halt to executions in the United States until the federal government and the 38 states that impose the death penalty change the system to ensure greater fairness.

Declaring that the current implementation of capital punishment is subject to “a haphazard maze of unfair practices,” the ABA’s House of Delegates adopted the resolution, 280 to 119, at its midwinter conference in San Antonio, despite the opposition of the group’s president and U.S. Deputy Atty. Gen. Jamie S. Gorelick. Former Atty. Gen. Benjamin R. Civiletti spoke in favor of the measure.

Passage of the resolution means that officials of the 370,000-member organization can lobby members of Congress and state legislatures to change procedures, conduct a broad educational campaign issue and file friend-of-the court briefs in death penalty cases when they have determined that an individual’s constitutional rights were violated.

“The significance of this action is that the group that is the most knowledgeable about how our legal system is implementing the death penalty has now concluded that the way it is being implemented is extremely unfair and that executions should not go forward until substantial changes to provide due process are made,” said New York City attorney Ronald Tabak, who has represented death row inmates in several states on a pro bono basis--that is, for free.

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The resolution stated that the death penalty unfairly discriminates against minorities. It also called for a ban on the execution of mentally retarded persons or individuals who were under 18 when they committed their crimes--reiterating earlier ABA positions.

In addition, the report said that neither the capital punishment procedures of the federal government nor any of the 38 states--including California--comport with what the ABA believes is necessary to guarantee fairness.

But the measure specifically did not take a position on the morality of the death penalty.

A report presented with the resolution vigorously criticized new federal laws that dramatically reduced the power of federal courts to review capital cases from state courts and eliminated federal funding for lawyers assisting death row inmates with appeals.

“These two recently enacted laws, together with other federal and state actions taken since the ABA adopted its [prior] policies on capital punishment, have resulted in a situation in which fundamental due process is now systematically lacking in capital cases,” the report by the ABA’s section of individual rights and responsibilities said.

“Individual lawyers differ in their views on the death penalty in principle and on its constitutionality,” according to the report. “However, it should now be apparent to all of us 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.”

Over the last two decades, the organization has called for policies that would ensure competent counsel in capital cases; ensure proper processes for adjudicating claims in capital cases--including the availability of federal habeas corpus; and strive to eliminate racial discrimination in the administration of capital punishment. The ABA also has recruited more than 400 lawyers to represent indigent death row inmates.

But the report stressed that “the time has now come for the ABA to take additional decisive action with regard to capital punishment,” because “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.”

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Backers of the resolution had garnered the support of 20 of the 24 living former ABA presidents. Among them, John J. Curtin Jr., who headed the organization in 1990-91, said that a lot of the problems in death penalty cases are created by the fact that trial lawyers in many of the cases are “undercompensated and not really competent.”

“We do not want to find ourselves in a situation where . . . as Supreme Court Justice John Paul Stevens told us at our convention last year, that we are taking ‘an appalling risk’ in implementing capital punishment ‘when the rates are so high and the safeguards so few,’ ” Curtin said.

The ABA’s current president, N. Lee Cooper, opposed the resolution because he believes it constitutes a de facto stand against the death penalty in general by saying that no current state or federal procedures comply with recommended ABA policy. “I took the position that this, in effect, was a vote against the death penalty. The proponents carried the day and said it was not a vote on the death penalty, but a vote on the constitutional rights of the accused.”

In voicing her opposition, Gorelick asserted that the Justice Department’s procedures are in accord with the resolution’s goals--including fairness, impartiality and minimizing the risk that innocent people might be executed. Gorelick also stressed that Atty. Gen. Janet Reno makes all final decisions on whether the department will seek the death penalty after an intensive internal review, including giving defense lawyers the opportunity to be heard about mitigating factors, including racial disparities.

But Civiletti, who was the attorney general from 1979 to 1981, said the current means of implementing capital punishment are unacceptable. “If we don’t stand for ensuring basic rights for those most reviled in society, who will?” Civiletti asked. He stressed that despite the common perception that most capital appeals are based on questionable technicalities, four in 10 death sentences that are appealed to federal courts on constitutional grounds are eventually reversed.

The ABA move was lauded by Stephen B. Bright, director of the Southern Center on Human Rights, who has specialized in capital appeals since 1979. He said a combination of new time limits for death row inmates seeking post-conviction review and difficulty for inmates in obtaining lawyers to represent them in such cases has led to appalling situations. “Recently, a man on death row in Georgia with an I.Q. less than 80 had to represent himself at a state habeas corpus hearing. It was a farce.”

But California Atty. Gen. Dan Lungren decried the ABA action as “irrelevant and outrageous.” Lungren, a staunch advocate of capital punishment, said: “I’d like to know how much time they spent listening to the opinions of families of murder victims. If they were truly concerned about the plight of people on death row--who already get the greatest protections of any accused criminals in the entire system--then they ought to put their money or their time where their mouths are and provide the lawyers they claim are not now available.”

The United States is the only Western democracy that uses capital punishment.