Report Regarding Implementation of the American Bar Association's
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University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 1996 Report Regarding Implementation of the American Bar Association's Recommendations and Resolutions Concerning the Death Penalty and Calling for a Moratorium on Executions Lyn Entzeroth Randall Coyne Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Human Rights Law Commons “©1996. Reprinted with permission of the publisher, Georgetown Journal on Fighting Poverty Recommended Citation 4 Geo. J. on Fighting Pov. 3 (1996). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. REPORT REGARDING IMPLEMENTATION OF THE AMERICAN BAR ASSOCIATION'S RECOMMENDATIONS AND RESOLUTIONS CONCERNING THE DEATH PENALTY AND CALLING FOR A MORATORIUM ON EXECUTIONS Randall Coyne and Lyn Entzeroth I. INTRODUCTION with various legal issues presented by capital cases. 3 Firm ABA policies exist A. The ABA Has Given Careful governing the provision of competent Consideration to Issues Surroundingthe counsel in capital cases, proper proce- Death Penaltyfor the Past Several Decades dures for adjudicating claims in capital The American Bar Association (ABA) cases (including federal habeas corpus), is a voluntary, national membership orga- race discrimination in capital cases, and nization of the legal profession, dedi- standards for determining who is eli- cated to the promotion of a fair and gible for the death penalty. ABA mem- effective system for the administration of bers frequently have testified before Con- Randall Coyne is justice.1 The ABA's more than 365,000 gress on myriad capital punishment Professorof Law at members come from each state and terri- issues. 4 Further, the ABA has filed numer- the University of tory and the District of Columbia. Its ous amicus curiae briefs in capital cases Oklahoma Law constituency includes prosecutors, pub- in the U.S. Supreme Court,5 has con- School. Lyn lic defenders, private lawyers, trial and ducted and supported training pro- Entzeroth is a Law Clerkfor the appellate judges from the state and fed- grams for lawyers and judges handling Oklahoma Court eral courts, legislators, law professors, capital cases, and has conducted a wide of Criminal law enforcement and correctional per- range of public education programs deal- 6 Appeals. Professor sonnel, law students, and a number of ing with the death penalty. Coyne and Ms. "non-lawyer" 2 associates in allied fields. In 1986, the ABA created a Death Entzeroth are Although the ABA takes no position Penalty Post-Conviction Representation co-authors of on the constitutionality or morality of Project. Since then, the Project has re- CAPITAL the death penalty, it has worked hard to cruited more than 400 volunteer lawyers PUNISHMENT AND try to ensure that the death penalty is to represent death row inmates and has THE JUDICIAL administered fairly. To that end, during sought to create programs that provide PROCESS, Carolina Academic Press, the past several decades the ABA has qualified, compensated counsel to capi- 1994. passed numerous resolutions dealing tal post-conviction petitioners. The ABA's VOLUME IV, NUMBER 1 (FALL 1996) Features Bar Information Project has assisted in and unjust "machinery of death." As the development of the new Louisiana Judge Kozinski explained, Indigent Defense Board. The ABA'sJudi- cial Administration Division is presently [Flully 40 percent of the death sen- preparing a trial handbook for judges tences imposed since 1972 have been vacated, sometimes 5, 10 or 15 years who preside over capital cases. More- after trial. One worries about the effect several Notwithstanding over, the ABA has commissioned on the families of the victims, who have the enormous studies that focus on the experiences of to endure the possibility-often the efforts of the counsel in capital post-conviction cases reality-of retrials, evidentiary hear- cases. 7 ABA, the crisis and judicial review in capital ings and last-minute stays of execution 2 in capital cases In 1988, the ABA formed a Task Force for years after the crime.1 has only on Death Penalty Habeas Corpus (ABA Task Force), which undertook an inten- Greatly exacerbating the situation is a worsened, in sive, year-long study of the process of chronic lack of lawyers willing to work substantial review of capital convictions and sen- on capital cases. Judge Kozinski ob- part because tences.8 The ABA Task Force formulated served, "thejurisprudence of death is so the ABA 's concrete recommendations that, if imple- complex, so esoteric, so harrowing, this recommendations mented, would enhance the efficiency is the one area where there aren't nearly largely have and fairness of state and federal review enough lawyers willing and able to 9 been ignored. procedures. handle all the current cases." 1 3 The Notwithstanding the enormous ef- result is a "peculiar limbo." forts of the ABA, the crisis in capital cases has only worsened, in substantial [W]e have constructed a machine that part because the ABA's recommenda- is extremely expensive, chokes our le- tions largely have been ignored. Judicial gal institutions, visits repeated trauma on victims' families and ultimately pro- decisions have contributed to the crisis. duces nothing like the benefits we would As two scholars recently observed in the expect from an effective system of capi- Harvard Law Review, "the Supreme tal punishment. This is surely the worst Court's chosen path of constitutional of all worlds. 14 regulation of the death penalty has been 10 a disaster."' Prosecutors likewise have begun speak- U.S. Court of Appeals Judge Alex ing out against our current system of Kozinski recently described the current capital punishment. At a recent ABA- state of the Supreme Court's death pen- sponsored program, Ernest Preate, Jr., alty case law: former Attorney General for the Com- monwealth of Pennsylvania, observed, Assuaging death penalty opponents, the "[I] n too many of our capital cases there Court has devised a number of extraor- is ineffective assistance of counsel on dinary safeguards applicable to capital both sides." 15 Attorney General Preate cases; but responding to complaints publicly endorsed capital resource cen- that these procedures were used for obstruction and delay, it has also im- ters for prosecutors and defense attor- posed various limitations and excep- neys and the establishment of rigorous standards for trial and appellate counsel tions to these safeguards. This pull and 16 tug has resulted in a procedural struc- in capital cases. ture-what Justice Harry Blackmun In another ABA-sponsored program, called a "machinery of death"-that is Andrew L. Sonner, the State's Attorney remarkably time-consuming, painfully for Montgomery County, Maryland, who cumbersome and extremely expen- has prosecuted numerous capital cases, sive."1 observed: Nor is the criminal justice system the There is absolutely no value to the only victim of this grotesquely inefficient prosecution of having the death pen- Georgetown Journal on Fighting Poverty Report RegardingImplementation of the ABA's Recommendations and Resolutions Concerning the Death Penalty alty. There is an absolutely huge cost in death in future cases: "What [appellate] the administration of it. As conscien- courts look for is legal errors, and there 2 tiously as I try to do it, I must confess were no legal errors in the case I tried. that I do not know how to do it and achieve fairness. I wish at the time of B. The ABA Is Not Taking a Moral or the Gregg v. Georgia decision, the Su- PhilosophicalPosition in Favor of or in preme Court would have indulged in Opposition to the Death Penalty Dickens's [A] Christmas Carol and gone forth and looked at capital punishment Nothing in this Report and accompa- previous, capital punishment as it ex- nying Resolution should be read to con- isted then, and capital punishment as it travene the freedom of individual ABA was to be administered; had they known members to take philosophical or moral the mess they would create for us pros- positions in favor of or in opposition to ecutors, I think it would have been capital punishment. Rather, as former nine-to-zero opposing the death pen- al ty. 17 ABA President John J. Curtin, Jr. told a congressional committee in 1991: "What- ever you think about the death penalty, a In 1995, Robert M. Morgenthau, the system that will take life must first give Manhattan District Attorney, revealed 2 1 justice. " "the dirty little secret [prosecutors] too often share only among themselves: The C. Nevertheless, the Failureof Capital death penalty actually hinders the fight 1 8 Jurisdictionsto Implement the Various ABA against crime." This prominent pros- PoliciesDeveloped over the Past Twenty Years ecutor described the system of capital and the Consequent Erosion of Fairnessin punishment in operation in the United CapitalCases Compels the Conclusion That States as follows: a Moratorium on Executions Should Be Imposed Until the ABA PoliciesAre Fully Promoted by members of both political Implemented and Fairness Guarantees parties in response to an angry popu- lace, capital punishment is a mirage Are Restored that distracts society from more fruitful, The most frequent criticisms of the less facile answers. It exacts a terrible "day-to-day operation of the death pen- price in dollars, lives and human de- alty system" were recently catalogued as cency. Rather than tamping down the follows: flames of violence, it fuels them while draining millions of dollars from more The process of selecting those offend- promising efforts to restore safety to 19 ers who will be put to death by the states our lives.