INTRODUCTION

The American Bar Association's Section of Individual Rights and Responsibilities has prepared this report to outline initial response to the ABA's 1997 resolution calling for a temporary moratorium on the death penalty until specific steps are taken to make administration of capital punishment fair. Immediately following adoption of the resolution, there was broad editorial support for the ABA's action. This report indicates that the more difficult grassroots efforts to educate the public about the death penalty and to take the preliminary steps necessary to implement the resolution now have begun. The Section of Individual Rights and Responsibilities recognizes that this process will be a lengthy one, but the activities under way are encouraging.

On February 3, 1997, the American Bar Association took a major step in its efforts to promote greater fairness and due process in the criminal justice system when its House of Delegates adopted, 280-119, the following policy statement:

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, Aug. 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 postconviction 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.

As the resolution explicitly states, the ABA has not taken a position on the death penalty per se. Instead, it has asked states and the federal government to cease executions until they eliminate flaws that make current systems of capital punishment fundamentally unfair.

When the Section of Individual Rights and Responsibilities presented this resolution to the ABA House of Delegates, the ABA already had in place several important and thoughtful policies about death penalty administration and related concerns. For more than 20 years, the ABA, through such policies, has attempted to educate lawyers, legislators, and the public about problems in the system. The ABA also has provided technical assistance to bars and individual lawyers interested in capital case representation, and dozens of its members have volunteered to provide representation in capital cases.

In recent years, however, state and federal trends generally had been going in the other direction, exacerbating rather than correcting serious issues affecting capital case representation. When the Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996, further restricting meaningful appeals, and ended funding for resource centers that helped lawyers with capital cases, the Section of Individual Rights and Responsibilities concluded that the ABA needed to do something more to call attention to counsel competency, racial discrimination, and other egregious problems that literally were becoming life or death matters in more cases in more states each year.

Eighteen months after the adoption of the resolution, the ABA has made a strong start in refocusing attention on these issues. No other policy statement in the ABA's history has generated more media coverage, interest over time, or response from the public and the profession, much of it positive. The resolution has helped make the public more aware of the death penalty process and the potential for error, bias, incomplete investigation, trial error, jury or judicial bias or inattention, and many other factors that can lead to unfair or wrongful results. It also appears to have made more lawyers aware of the challenges and complexities of capital cases that make proper representation in such cases so fundamental to an individual's right to counsel.

This report outlines developments through August 1998 in the ABA, other bar associations, state legislatures, the courts, the legal literature, and nonlegal organizations, national and international, since the ABA adopted its resolution in February 1997. This survey of activity reflects incremental, but important, progress towards the ultimate objective of achieving a moratorium on executions until significant problems can be assessed and corrected. It also shows that many others share the ABA's commitment to equal justice and to a system that, to work at all, must be fair to all.

ABA ACTIVITY PROMOTING THE RESOLUTION

Immediately following the House of Delegates' adoption of the death penalty resolution, the ABA faced an unprecedented demand for information about the policy and the reasons for it. For several weeks the ABA responded to requests for media interviews and provided copies of the Report with Recommendations to members, judges, legislators, bar officials, defense lawyers, human rights activists, and members of the public. For the first time, an entire Report with Recommendation was placed on the ABA Website for public reference. Media packages, fact sheets, and other materials to help illustrate the concerns raised in the resolution also were prepared, and dozens were provided to media outlets and other organizations.

It quickly became apparent that the resolution's impact was going to be even more longlasting and far-reaching than had been anticipated. Media wanted to do follow-up stories about the issues raised in the resolution, including counsel competency, wrongful convictions, abuse of process, and execution of juveniles and the mentally retarded. Lawyers sought advice on how they might develop a similar resolution for their own state or local bars. Courts asked for copies of the "Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." State legislative offices wanted to know other states' responses to the moratorium proposal.

The resolution clearly prompted some judges, prosecutors, and legislators to take a closer look at all the ABA's death penalty-related policy statements and reports, and in a number of states, the process of reviewing their own capital case practices to determine how they measure up against the ABA principles has begun. Over the last year, ABA activity therefore has focused on encouraging development of these interests through special programs, public education efforts, litigation support, communication networks, and development of additional materials, including this report, to help convey the status of death penalty implementation nationwide. The Section of Individual Rights and Responsibilities, as originator of the resolution, has undertaken much of this work, with substantial contributions from other entities.

Informational programs alone often have been a major factor in helping educate lawyers and the public about issues raised in the moratorium resolution. One major initiative shaped by the ABA resolution was a day-long symposium in July 1997 at he Carter Center in Atlanta, Ga., that focused on issues raised in the ABA resolution. One purpose of the program, entitled, "Capital Punishment 25 Years After Furman v. Georgia," was to examine death penalty processes in light of the resolution. Opening speakers were Robert J. Grey, Jr., now chair of the ABA House of Delegates and Ronald J. Tabak, chair of the Individual Rights and Responsibilities Section's Death Penalty Committee. An edited transcript of the proceedings has been published in the Georgia State University Law Review.

In April 1998, a similar kind of symposium was held in North Carolina to examine that state's practices in the context of the ABA resolution and to plan for a possible moratorium initiative there. Among the organizers of the event was J. McNeill Smith, a past chair of the ABA Section of Individual Rights and Responsibilities and 1997-98 Chair of the North Carolina Bar Association's Section on Constitutional Rights and Responsibilities.

Among other programs that the ABA or the Individual Rights Section has sponsored or in which members have participated as organizers or presenters are the following:

• A February 1997 presentation concerning the bases of the moratorium, at a meeting of the Federal Bar Council;
• An April 1997 Race and the Law Symposium, "What Role Does Race Play in Death Penalty Sentencing?", sponsored by the Black Law Students Association of Loyola University/Chicago School of Law;
• A May 1997 forum in Philadelphia entitled, "The American Bar Association's Call for a Moratorium on the Death Penalty"
• An August 1997 program entitled, "Law, Justice, and the Death Penalty: A Dialogue on State Practices," a debate between Steven B. Bright of the Southern Center on Human Rights and California Deputy Attorney General Dane Gillette on states' compliance with capital case representation standards and other provisions in the ABA resolution, held at the 1997 ABA Annual Meeting in San Francisco;
• A March 1998 program entitled, "How the Death Penalty Works: Empirical Studies of the Modern Capital Sentencing System," with a presentation on "How Empirical Studies Can Affect Positively the Politics of the Death Penalty," sponsored by the Cornell Law Review and the Cornell Death Penalty Project;
• An April 1998 presentation on the resolution at the National Capital Case Conference, sponsored by the U.S. Courts of the Ninth Circuit and the State Courts of Arizona;
• An August 1998 program entitled, "Human Rights or Human Wrongs: Is the United States Death Penalty Inconsistent with International Human Rights Law?," held at the 1998 ABA Annual Meeting in Toronto;
• An October 1998 "First Monday" program of the Alliance for Justice, a national organization encouraging law students to engage in public interest law, that will focus on capital case representation and other moratorium-related issues, with the ABA participating in the planning;
• A November 1998 "National Conference on Wrongful Convictions and the Death Penalty," at the Northwestern University School of Law.

The resolution has enabled the ABA to develop partnerships to work on death penalty issues in other ways as well. For example, the ABA has been approached more frequently to submit amicus curiae briefs in U.S. Supreme Court cases involving habeas corpus or other death penalty-related issues. In the last year, the ABA has submitted three such briefs. Similarly, the ABA has been invited to testify before state legislative bodies considering death penalty-related issues. (Both the briefs and the testimony are described in detail in later sections of this report.)

In addition, the ABA increasingly is being asked to use the resolution as the basis for commentary on developments in specific death penalty cases. In the last year, 1997-98 ABA President Jerome J. Shestack sent letters to three governors making final decisions on death penalty appeals to call their attention to the principles embodied in the resolution and to urge them to take the ABA's positions into account in their decisions.

A November 1997 ABA letter to Illinois Gov. Jim Edgar notes that the ABA House of Delegates had approved the resolution because many delegates are concerned about systemic problems in capital case investigation, representation, and litigation in their own jurisdictions. Observing that "the state of Illinois already has documented problems in death penalty cases that have resulted in the release of several individuals from Illinois' death row in recent years," Shestack praises the Illinois State Bar Association's recent decision to undertake a study of death penalty issues in Illinois and legislators' proposals for a moratorium on death penalty implementation pending the outcome of such a review by the bar or others. "I urge you to support the State Bar's efforts to help ensure that the death penalty, if used in the future, is applied fairly, without bias, with full and competent representation of defendants by counsel at all stages of the trial and appeals process," Shestack concludes.

In a March 1998 letter to Texas Gov. George W. Bush, the ABA emphasizes its longstanding opposition to executions of juveniles who were under age 18 when they committed offenses punishable by the death penalty. Urging clemency for death row inmate Robert Carter, who was 17 when he committed murder, the letter states that reconsideration of this case should be particularly compelling because Carter was treated as an adult automatically under applicable law, "with no procedure for examining his individual levels of maturity and ability to understand his crime." Juveniles' impulsiveness, lack of self-control, and poor judgment make standards of adult accountability inappropriate and render adult objectives of deterrence and retribution meaningless in cases involving juveniles, the letter states.

In April 1998, the ABA was among many organizations and individuals urging Virginia Gov. James S. Gilmore to postpone the execution of Paraguayan citizen Angel Francisco Breard until the International Court of Justice could consider Paraguay's claim that Breard's arrest and trial for murder had proceeded in violation of the Vienna Convention on Consular Relations, an international treaty that guarantees a citizen of a signatory country the right to talk with his country's consulate upon his arrest in another country. The International Court had called upon the United States, as party to the treaty, to do everything possible to prevent Breard's execution pending the Court's final decision on Breard's claim to a new trial because of the violations. The ABA's letter states that due process and fundamental fairness of justice, as well as compliance with the treaty, had led the ABA to conclude that "our nation's interest in and respect for the international rule of law requires that a reprieve be granted" until the Court completes its work.

The ABA also addressed principles embodied in the resolution in a March 1998 letter to the U. S. Court of Appeals for the Fourth Circuit, which encompasses the states of Maryland, Virginia, West Virginia, North Carolina, and South Carolina, to ask the Court to reconsider its order of Oct. 3, 1996, requiring district and circuit judges to decide capital habeas corpus cases under an expedited schedule. The expedited process is intended only for states that already have specified procedures for appointment of counsel in state postconviction procedures, the ABA notes. This order, when such processes are not in place, produces efficiency without fairness, the letter points out, making it possible for states to avoid the "interdependent obligation of providing competent, adequately compensated counsel" in capital cases and making it more difficult for the ABA to find lawyers able and willing to take capital cases pro bono.

The ABA also has sought to increase public awareness and understanding of issues raised in the resolution through periodic news releases, including several "Op Eds" drafted specifically to help explain the reasons for the ABA's call for a moratorium. In the first Op Ed piece, published in the Chicago Sun-Times shortly after the ABA adopted the resolution, Ronald J. Tabak, chair of the Section of Individual Rights and Responsibilities' Death Penalty Committee, describes the basic principles of the resolution and the reasons for them.

Another Op Ed piece, disseminated in spring 1997 and published by a variety of newspapers, was written by Benjamin Civeletti, former U. S. Attorney General and one of the proponents of the resolution in the ABA House of Delegates. Captioned, "Before We Take a Life, Give Justice," the piece focuses on the ABA's fundamental concern about execution of those innocent of the crime for which they have received the death penalty. "Despite the U.S. Supreme Court's 1972 charge to the states to overhaul their death penalty laws to make them less arbitrary, and more fair," the editorial states, "innocent persons are still being sentenced to death, and the chances remain unacceptably high that the innocent persons have been or will be executed" because of inadequate counsel, lack of meaningful judicial review, and racial bias. "I am not opposed to capital punishment," Civeletti states. "But the serious flaws in our capital punishment system have not been addressed." Until they are, he concludes, "a moratorium on executions is the appropriate response to the failures that pose a genuine threat to the liberties we all hold dear."

Another, Op Ed piece, "Who Shall Live and Who Shall Die", by ABA Death Penalty Representation Project Chair Lawrence A. Fox, emphasizes the need for public and political support for adequate funding of capital case representation. "Of 505 inmates on death row in California today, 172 have no lawyer. . . to represent them on appeal," he states, and California's situation is not unique. "When a society elects to impose the ultimate sanction--death--it must make certain that those with legitimate claims of factual innocence, those with claims they acted in self-defense, those with claims of mental incapacity or insanity, those with claims they acted negligently, and most importantly perhaps, those with compelling mitigating circumstances about the crime or the defendant, have the assistance of a capable advocate to assert those claims," he writes. "It is the view of the American Bar Association that if we are to impose the death penalty, then the death penalty's most ardent advocates should also be the most ardent advocates for securing this kind of representation." As the system is now, "the decision of who is to live and who is to die turns, not on the merits of individual cases, but on the availability or absence of effective assistance of counsel."

Finally, the resolution has helped rejuvenate the ABA Death Penalty Representation Project itself. Founded by the Section of Individual Rights and Responsibilities and now administered by the Section of Litigation, the project recruits lawyers and law firms to take on pro bono representation of death row inmates who have no lawyers. As of July 1998, there were approximately 3,400 death row inmates nationwide. Because funding for postconviction representation is inadequate or nonexistent in most capital jurisdictions, hundreds of these inmates are represented, if at all, by lawyers who have little experience and insufficient resources to conduct necessary investigations. The growing urgency of the need for lawyers is illustrated by the situation in Alabama, as of July 1998, where 34 of the 170 death row inmates had no lawyer at all to help them with postconviction petitions, although all the inmates face a one-year statute of limitations on filing federal court appeals. Because such cases are resource intensive, time-consuming, and complex, requiring specialized knowledge and experience for effective representation, lawyers often are unable to commit the time and expense such representation entails.

This crisis was a major factor in the ABA's adoption of the resolution. However, attention generated by the moratorium resolution has helped the ABA and the Project educate lawyers outside the criminal law field about the severe problems in capital case processes and the urgent need for lawyers to help. Since January 1998, the Project has recruited approximately 20 lawyers or law firms to take on capital cases. The Project also is supporting a lawyer at the Equal Justice Initiative in Alabama under a one-year grant that provides funding for lawyers, as well as individuals who assist counsel, to attend capital representation training programs. The Project also is updating training materials for pro bono lawyers who take capital cases.

Through such initiatives, the Project, the Section of Individual Rights and Responsibilities, and the ABA are helping publicize and address what the ABA resolution identifies as one of the most critical concerns in death penalty cases today.

RESPONSES OF STATE AND LOCAL BAR ORGANIZATIONS 

Since February 1997, four state bars and two city bars have taken action in response to the ABA's resolution, and several other bars have considered or are considering such action.

Illinois

The Chicago Council of Lawyers was the first bar organization to respond to the ABA's moratorium proposal. In March 1997, the Council adopted a policy statement calling for a "one-year moratorium on imposition of the death penalty in Illinois" so that officials can address "something terribly wrong in the Illinois death penalty statute or its administration, or both."

The statement cites the ABA resolution and identifies similar problems in Illinois in areas such as racial bias and inadequate representation of counsel. The Council also specifically cites several well publicized erroneous convictions, including those of nine death row inmates who have been released in recent years after serving long periods on death row for crimes they did not commit, and other serious concerns with the criminal justice system. The statement urges the State to undertake a study that addresses the following "specific factors" that it says are contributing factors to wrongful convictions:

• Misconduct by prosecutors and police officers, including fabrication of evidence of guilt and suppression of evidence of innocence;
• Inadequacy of funding of defense counsel at trial, on appeal, and in postconviction proceedings;
• Prejudicial news media;
• Reliance on questionable witness testimony;
• Failure to investigate exculpatory evidence after conviction; and
• Questionable use of confessions in prosecutions.

In its initial statement and subsequent actions, the Council of Lawyers launched a moratorium campaign aimed at all three branches of state government. The Council urged Gov. Jim Edgar of Illinois to postpone pending executions and to appoint a commission to study the state's death penalty processes and recommend reforms to prevent future miscarriages of justice. "No matter what one may think of capital punishment," the Council said in its letter to the governor, "no right-thinking person believes that innocent persons should be put to death by the state."

The Council also submitted an amicus curiae brief to the Illinois Supreme Court in People v. Kliner, in which more than 40 prominent individuals, including lawyers, legal experts, religious leaders, and three former death row inmates, asked the court to use its supervisory authority to establish a blue-ribbon commission to study "a problem of extraordinary magnitude . . . : the imposition of death sentences upon persons who, it is later learned, should never have been convicted of the offense." The Council also asked the court to defer setting any more execution dates pending completion of the study. Citing the ABA resolution in support of its argument, the brief states, "This Court's leadership is urgently required to dispel the cynical perception among some members of the public that the capital punishment process is flawed and unreliable." The brief also notes that the amici in the case ". . . have varying positions on the death penalty. The amici believe in common, however, that Illinois has come too close, too often, to executing innocent people."

In addition, the Council called upon the State Attorney General to "cease the practice of automatically pressing for execution of every defendant sentenced to death" and urged the Cook County State's Attorney to review office procedures for handling capital cases "to ensure that innocent persons are not prosecuted."

Finally, the Council committed itself to pressing for legislation that would provide for a one-year moratorium on executions and establishment of a bipartisan commission to study the system and to recommend reforms.

Although the Illinois State Bar declined to join in the amicus brief in People v. Kliner, its Board of Governors adopted a policy position in September 1997 calling for the bar to "establish a task force to study issues relating to adequate representation in all phases of capital cases and to make recommendations to improve the integrity of our judicial system in respect to such cases."

Pennsylvania

In October 1997, the State Bar of Pennsylvania became the first state bar organization to follow the ABA's lead on the moratorium itself when it approved a "Resolution Requesting a Moratorium on Capital Punishment in Pennsylvania." The resolution explicitly cites the ABA resolution and the numerous problem areas the ABA identified as raising serious doubts "whether, under current law and practice, the death penalty can be imposed in the courts of [Pennsylvania] in a manner which is fair and impartial, and not arbitrary and discriminatory." Like the ABA resolution, the Pennsylvania resolution cites racial disparity in death sentencing, death sentences for juveniles or the mentally impaired, and federal law curtailing review in capital cases among its serious concerns. The state bar resolution further notes that other bases for its action were the state's restrictions on capital appeals and enactment of Act 28 of 1997, "which effectively denies judicial review of proportionality in the imposition of the death penalty." Notably, the resolution also points to the fact that "several recent U.S. Supreme Court Justices, including Justices Brennan, Marshall, Powell and Blackmun, have expressed serious doubts about whether the death penalty can be imposed in a fair and just way. . .[.] Justice Powell declar[ed] that his greatest regret was that he had voted to uphold the constitutionality of the death penalty in McCleskey v. Kemp, 481 U.S. 279 (1987), and Justice Blackmun expresse[d] similar concerns as he dissent[ed] in McFarland v. Scott, 114 S. Ct. 2785, 2790 (1994), and Callins v. Collins, 127 L. Ed. 20 435, 436 (1994) . . ..

The Philadelphia Bar Association followed suit four weeks later with its own call for a moratorium in Pennsylvania, which has "the fourth largest death row in the country with 215 people, 115 of whom are from Philadelphia." Quoting the ABA and Pennsylvania Bar resolutions in its opening clauses, the resolution notes specifically that the State has not acted on the bar's 1993 recommendation "to establish a commission to investigate ethnic and racial discrimination in Philadelphia's criminal justice system . . ., notwithstanding an announcement by the Pennsylvania Supreme Court that it would initiate a statewide study in racial, ethnic, and gender fairness upon receipt of state funding[.]" The resolution cites lack of adequate resources for capital defenses and the "substantial risk that the death penalty continues to be imposed in an arbitrary, capricious and discriminatory manner." The resolution particularly notes "a substantial change in due process protections in capital cases, including an increase in the number of aggravating factors such that the statute now fails to genuinely narrow the class of offenders eligible for imposition of the death penalty, limitations in state and federal habeas corpus review, an amendment permitting victim impact evidence that does not provide guidance for its use, and a repeal of the requirement that the Supreme Court conduct proportionality review[.]"

Like the ABA and the state bar, the Philadelphia bar calls for the moratorium to continue "until such time as the fair and impartial administration of the death penalty can be ensured and the risk that innocent persons may be executed is minimized."

In urging the bar's Board of Governors to adopt the resolution, Philadelphia Bar Association Chancellor Clifford Haines argued, "It's incumbent on legal leadership across the country to look carefully at the way the death penalty is carried out and the way the people whose lives are taken from them are represented before any public official goes forward with the penalty."

Connecticut

In Connecticut, the State Bar Association's House of Delegates overwhelmingly adopted a resolution in June 1998 that similarly calls for a moratorium on executions until the state conducts studies and takes action to help ensure that the death penalty is not carried out in an unfair and discriminatory manner. In support of the resolution, the bar referred to problems of racial bias in sentencing and lack of adequate funding and pay for the special public defenders charged with handling capital cases. The substance of the resolution incorporates the language of the ABA resolution.

Ohio

One of the most comprehensive policy responses from bar organizations has been that of the Ohio State Bar Association. In November 1997, while not calling explicitly for a "moratorium," the bar issued a "Report Calling for a Review of Ohio's Death Penalty System in Order to Remedy Defects in the Existing Law That Undermine the Fairness and Reliability of Capital Prosecutions and Sentences in Ohio." The report reflects the bar's conclusion that problems cited in the ABA's resolution exist in Ohio and that the state bar shares responsibility to help correct these problems. The report states that in the 16 years since Ohio's adoption of its current death penalty statute, "a number of flaws in the capital system that undermine the fairness and reliability of the capital sentences have become obvious . . .. Because the problems in Ohio's capital punishment system are so fundamental, and because of the dignity that should be afforded every human life, [the report's] recommendations should be implemented." Among the concerns that the report cites, for which it also suggests specific remedies, are the following:

• Indigent capital defendants must be provided with appointed counsel whose effectiveness is not undermined by inadequate compensation and inadequate funding for experts;
• What constitutes a capital crime should be predictable based upon statewide statutory criteria, not vary from county to county;
• The death penalty must be reserved for only the most serious of crimes;
• Racial disparity in use of the death penalty must be eliminated;
• Juries must be provided clear instructions on how to determine guilt/innocence and the penalty;
• Swift imposition of the death penalty must not be achieved at the cost of fairness and reliability;
• Separate and unequal systems for appellate review and staying imposition of sentences in death penalty cases deny capital defendants the same protection of the law that is afforded those charged with less serious crimes;
• A death-sentenced prisoner must be provided with counsel and a copy of the record for postconviction review of the capital case; and
• The defendant must not be denied legitimate defenses.

The report recommends changes in court rules, state laws, fee structures, training, and processes to address these concerns and calls upon the state's courts, legislature, and governor to ensure that recommended safeguards "are in place and observed in every case."

The report's conclusion emphasizes that both supporters and opponents of the death penalty can agree that "if the death penalty is to serve legitimate societal purposes, the process by which it is imposed must be fair and the sentences rendered must be reliable . . .. No individual should be executed unless and until it is determined that none of the factors identified have undermined the reliability of his capital sentence."

Other States

In addition to substantive actions by bars that have examined their states'records in areas of concern cited by the ABA resolution, the ABA's call for a moratorium has prompted bar activity in a number of other states, including the following;

• Florida: Members of the Florida Bar are laying the groundwork for a death penalty moratorium resolution.

• Kentucky: The State Department of Public Advocacy and the Kentucky Association of Criminal Defense Lawyers, as well as the Kentucky Civil Liberties Union, called upon the Kentucky Bar Association (KBA) to join the ABA's call for a moratorium on executions. The KBA's Board of Governors declined to do so because of restrictions on its ability, as a unified bar, to take positions on legislative issues.

• Missouri: The Missouri Association of Criminal Defense Lawyers adopted a resolution supporting the moratorium in April 1997. In May 1997, the Criminal Law Committee of the Missouri Bar adopted a resolution calling upon the governor to impose a moratorium on executions in Missouri in accordance with the ABA resolution and further resolved that Missouri's funding for capital postconviction relief representation in the state courts is inadequate to support application of the "opt-in"provisions of the AEDPA. The governing board of the Missouri Bar concluded that the issue of capital punishment is "outside the scope of interest" of the Missouri Bar. The bar has defined its interest as "those issues affecting the integrity of the judiciary and the administration of justice, which do not have overriding social and political considerations."

• New Mexico: Members of the New Mexico Bar's Criminal Law Section are considering whether to begin a moratorium initiative.

• New Jersey: The Individual Rights Section of the New Jersey State Bar Association voted in May 1998 to recommend to their trustees that the New Jersey State Bar Association adopt the ABA resolution.

• North Carolina: Members of the Constitutional Rights and Responsibilities Section of the North Carolina Bar Association are considering proposing that the association call for a moratorium.

• Tennessee: The Tennessee Bar Association's Board of Governors considered a proposal regarding a moratorium, but voted not to take a position on the issue.

LEGISLATIVE ACTIVITY

Since February 1997, there has been considerable legislative activity affecting or potentially impacting death penalty processes in the states. More than half of the bills introduced in the last 18 months would have expanded the scope of either the death penalty itself and its application or the range of offenses for which the death penalty could be imposed in particular states, but few of the provisions have been enacted to date. On the other hand, numerous other legislative proposals have been introduced that address concerns raised in the ABA resolution, from counsel representation and compensation to execution of the mentally retarded or individuals who were juveniles at the time they committed their offenses. A few have become law. Although direct correlations cannot always be drawn between these legislative actions and the ABA's adoption of its resolution, it is clear in several cases that the resolution either prompted a bill's development or served to support enactment of legislation.

Bills introduced in state legislatures since 1997 that affect capital punishment activity are summarized in Appendix D of this report. A few are noteworthy particularly for countering the current trend toward states' enacting legislation that restricts capital defense options, particularly in the problem areas cited in the ABA resolution.

Perhaps the most significant legislative development in the last 18 months is the Kentucky state legislature's adoption of a Racial Justice Act in March 1998. The ABA cites as a major reason for the need for a moratorium the increasing evidence of racial disparity in prosecutorial or sentencing decisions, or both, in capital cases in many of the states that authorize the death penalty. As of the time the resolution was adopted, however, no state had addressed this fundamental concern adequately through legislation, and several efforts over the last decade to enact a federal Racial Justice Act to address the problem have failed. Kentucky's new law permits a capital defendant to use statistical evidence of racial discrimination to show that the race of either the defendant or the victim affected the state's decision to seek the death penalty in the defendant's case. Kentucky's action is important not only because it is the first state to enact such legislation, but also because Kentucky's death row exemplifies the impact of possible bias based upon the victim's race in capital cases. According to one recent study, every inmate on Kentucky's death row had been convicted of murdering a white person, even though many of Kentucky's murder victims are black.

Another legislative achievement reflecting a specific concern cited in the ABA resolution was the Nebraska state legislature's passage in April 1998 of LB 1266, legislation to bar executions of the mentally retarded in that state. As data in Appendix F indicate, a number of states have been considering lowering the threshold IQ or other measure of retardation for purposes of death penalty eligibility, while, as of the time the ABA adopted its resolution, only 11 states had enacted legislation to prohibit execution of the mentally retarded. Legislation banning execution of the mentally incompetent also was introduced, but not enacted, in Texas in 1998.

Significant legislation of a different kind is the state of Illinois' enactment in March 1997 of a provision that permits a death row inmate to obtain DNA testing of evidence presented at trial and to introduce results of such testing in an appeal proceeding. The publicity generated by the ABA moratorium, and its emphasis on the high rates of wrongful convictions and inadequate representation of individuals charged with capital crimes, reportedly helped persuade the legislature to enact the measure.

The ABA resolution also has played a significant role in at least two state legislative debates on moratorium-related issues. In Illinois, a resolution that would establish a nonpartisan Commission on the Death Penalty to study "all aspects of the death penalty as currently administered in Illinois" and to report its conclusions, "including remedies for any deficiencies found by the commission," was introduced in the Illinois House of Representatives in July 1997. Citing concerns about police and prosecutorial misconduct, judicial corruption, racial bias in prosecution and sentencing decisions, the disproportionate numbers of poor and minority death row inmates, lack of adequate defense resources, and execution of innocent persons, the House resolution also calls for the state Supreme Court to refrain from setting execution dates and for the governor to grant temporary reprieves to death row inmates facing execution dates until the Commission has completed its work and "any necessary reforms in the administration of the death penalty are implemented."

In October 1997, Jerold Solovy, an ABA and Individual Rights and Responsibilities Section member who is chairman of the Chicago law firm of Jenner and Block, was invited to testify before the House Human Services Committee in support of the legislation. Citing the reasons for the ABA moratorium and their applicability to death penalty processes in Illinois, Solovy said that the resolution "would afford a much-needed opportunity for examination of how widespread are these patterns of official misconduct [identified in the Illinois resolution] and the extent to which they affect the administration of the capital process. . .. Whatever our individual views on capital punishment, we should do whatever is necessary to ensure that the system is as fair, as reliable, and as unbiased as it possibly can be. It is not that now," he concluded.

The committee approved the resolution, and it was pending in the House Rules Committee until the end of the 1998 session, but never reached the House floor.

The other state legislative debate in which the ABA resolution played a part occurred in New Hampshire. In February 1998, Jack Middleton, a lawyer with the New Hampshire firm of McLane Graf and a member of the ABA Board of Governors, testified at the invitation of the New Hampshire legislature's Senate Judiciary Committee concerning proposed legislation that would have expanded the definition of what constitutes capital murder and would have made the death penalty a possible sentence for first degree murder, in addition to capital murder. Because at that time New Hampshire had not exercised its existing authority to impose and implement the death penalty and therefore had no experience with implementation issues, the testimony focused on the reasons for the ABA moratorium call, particularly the need for due process safeguards to ensure that a system is fair and will not result in the execution of wrongly convicted individuals. The death penalty expansion bill was not approved.

Other state legislative action of interest, although not tied directly to the moratorium initiative, is the Massachusetts legislature's defeat by one vote in November 1997 of a bill that would have re-established the death penalty in that state. Approval had seemed certain until one legislator who had supported the bill in previous votes changed his mind. He said that recent publicity about the Louise Woodward "nanny"case in his state made him realize that conviction of innocent people was possible; that the finality of a death sentence makes it different from other sentences, which at least are reversible, if found to be wrong; and that the possibility that an innocent person would be executed made the stakes too high for capital punishment to be an option in Massachusetts' criminal justice system.

At least three other state legislatures--Maryland, Missouri, and New Mexico--have considered moratorium-related legislation. In Maryland, legislation already introduced at the time of the ABA action subsequently was amended to call for a moratorium in that state. Both the original House and Senate bills that would have established a Commission on the Fair Imposition of the Death Penalty, to examine particularly the process that had produced a death row with the highest percentage of minorities in the country, died in committee. Similar legislation introduced in the 1998 session also died in committee.

In the Missouri legislature, two House bills were introduced in January 1998, one that would have placed a "moratorium on the execution[s]. . . until the sentencing advisory commission has completed a study in regard to the death penalty," and another that would have barred death sentences for mentally retarded persons convicted of first degree murder. Both bills died in committee.

In the New Mexico legislature, a 1998 bill that would have provided funding for a study of proportionality in death penalty sentencing was introduced but not enacted.

JUDICIAL AND SCHOLARLY RESPONSE TO THE RESOLUTION

The ABA resolution already has influenced several court decisions and law review analyses.

In the last year, the ABA has filed three U.S. Supreme Court amicus curiae briefs concerning points on appeal in death penalty cases. The briefs rely on ABA policies pertaining to capital case representation that were reaffirmed in the 1997 death penalty resolution.

Federal Court Decisions

On May 18, 1998, in Stewart v. Martinez-Villareal, ---U.S.---, 118 S. Ct. 1618, 140 L. Ed. 2d 849 (1998), the Supreme Court held, consistent with the position taken by the ABA in its amicus curiae brief, that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) does not preclude consideration of a death row inmate's constitutional claim that he is incompetent to be executed. This kind of constitutional claim, which the Supreme Court recognized several years ago, arises when a death row inmate becomes so mentally incapacitated that he or she cannot comprehend either the fact of his or her impending execution and/or the basis for the execution. When Martinez-Villareal had attempted to raise the incompetency issue in earlier appeals proceedings, the State successfully argued that his action was premature because no real threat of execution existed at that time, and lower courts had said that this kind of claim could not be brought until the inmate faced an actual execution date. But when a real threat of execution arose--that is, a realistic execution date was set--the State claimed that under the AEDPA, the federal courts could not consider the issue because Martinez-Villareal already had had his day in federal court on the other issues he previously had raised. Rejecting the State's claim, the Supreme Court held that the 1996 statute limiting appeals does not apply to issues, such as Martinez-Villareal's incompetency claim, on which the federal courts previously could not have ruled.

Earlier in the term, the Supreme Court decided Ohio Adult Parole Authority v. Woodard,

---U.S.---, 118 S. Ct. 1244, 140 L. Ed. 2d 387 (1998). The key issue in that case was whether the constitutional right to due process could ever apply in the context of a death row inmate's clemency proceeding. The State of Ohio, joined by many other states and other groups as amici curiae, argued that due process never can apply in a clemency proceeding, whereas the ABA joined Woodard and several other amici curiae in arguing that, under some circumstances, due process could apply in a clemency proceeding. On this key issue, the Court ruled against the State and in favor of the ABA's position. A majority of the Court, consisting of the justices who concurred in the Court's judgment and the justices who dissented from that judgment, agreed that there could be circumstances in which due process would be violated in the context of a capital case clemency proceeding. Although the concurring justices suggested that the circumstances of due process violations would be extraordinarily rare, such as where a clemency board flips a coin to decide whether to grant clemency, the decision nevertheless preserves at least the possibility of successful case-by-case litigation on this point.

On Woodard's specific claim of the unconstitutionality of the clemency process, the Court ruled for the State. The ABA's brief had supported Woodard's assertion that lawyers who represented him in a state postconviction proceeding needed sufficient time and access to the clemency authority to prepare a meaningful clemency application, to appear at the clemency hearing, and to present documentary evidence. The ABA pointed out that counsel for a death row inmate might come up with crucial new evidence bearing on guilt/innocence or on sentencing factors that the jury had never heard. The ABA argued that counsel's actual appearance at the clemency hearing would best ensure both that such evidence would be presented and considered and that contrary evidence would be subject to cross-examination. In support of its argument, the ABA cited the Supreme Court's own words in Herrera v. Collins, 506 U.S. 390 (1993), where the Court called clemency the "failsafe" of our criminal justice system. However, the Court found that Ohio's system, under which the counsel already representing Woodard in state postconviction litigation were permitted to help Woodard prepare a clemency petition and to seek permission to participate in the clemency hearing, albeit under difficult time constraints, was constitutionally sufficient.

On Feb. 6, 1998, the Supreme Court denied certiorari in the third case in which the ABA submitted an amicus curiae brief, Mackall v. Angelone, 236 Va. 240, 372 S.E. 2d 759 (1998), cert denied ---U.S.---, 118 S. Ct. 907, 139 L. Ed. 2d 922 (1998). The ABA had urged the Supreme Court to consider this case in order to decide an issue that the Supreme Court has never addressed directly: whether a federal court may consider a death row inmate's claim that his trial and first-level appeal lawyers were so egregiously ineffective as to violate the inmate's constitutional right to effective assistance of counsel, when the reason no state court ever had considered that claim previously was the failure of postconviction counsel to investigate or raise the issue himself or herself. Otherwise, the ABA said, the constitutional right of indigent people to the effective representation of counsel, as enunciated in 1963 in Gideon v. Wainwright, 372 U.S. 335 (1963), and Douglas v. California, 372 U.S. 353 (1963), would be rendered meaningless because a poor person could be assigned totally ineffective counsel at trial, first-level appeal, and state postconviction proceedings without ever having the ineffectiveness issue investigated, raised, argued, or decided. In such circumstances, a death row inmate, through no fault of his or her own, could face execution without ever having had the representation the Constitution requires. Proper counsel representation, on the other hand, reduces the likelihood of an erroneous conviction or death sentence. (Mackall was executed soon after the Supreme Court refused to hear the case.)

In the lower federal courts, the ABA policy has been cited in at least one decision. In

March 1997 in Pruett v. Larry Norris, Director, Arkansas Department of Correction, 959 F. Supp. 1066 (1997) rev'd, Pruett v. Norris __F.3d__, 8th Cir. Ark (1998), the court cited the ABA moratorium in setting aside Marion Albert Pruett's conviction and death sentence because of constitutional rights violations. The court found that Pruett's rights were violated 1) because venue had been changed to a place that had been subject to the very same prejudicial pre-trial media coverage that had affected the original venue and his request for a second change of venue had been denied and 2) because "hypnotically-refreshed" testimony had been introduced at sentencing. Noting that the ABA had stated that halting executions is necessary because "efforts to forge a fair capital punishment jurisprudence have failed, the court said that the federal judiciary must "try to ensure that the death penalty is not applied unfairly or arbitrarily."

State Court Action

The 1997 ABA resolution also has triggered activity in the state courts. Most notable, perhaps, is a petition pending before the Florida Supreme Court that cites the ABA resolution and asks the court to stop further executions until the State of Florida provides adequate funding for effective representation of death row inmates. The petition, filed Mar. 18, 1998, also asks the court to hold that the Florida constitution guarantees death row inmates a right to effective assistance of counsel in capital postconviction proceedings.

Florida has established a system of Capital Collateral Regional Counsel (CCRC) in which 27 lawyers represent more than 230 death row inmates in state and federal postconviction proceedings. The lawyers are obligated to do everything necessary in these cases, from initial investigations to litigation, with whatever funding the state legislature appropriates for them. The CCRC lawyers have said that funding is so inadequate that they cannot provide effective representation for their clients. Stephen F. Hanlon, with Holland & Knight L.L.P., filed the Court petition pro bono on their behalf.

The court subsequently consolidated this case with the "inventory cases," in which the three CCRC offices, located in Tampa, Miami, and Tallahassee, already were reporting to the court about their problems in proceeding under applicable statutes in a timely way on behalf of their clients, particularly in filing original habeas corpus motions. The court previously had tolled the time for various filings because of the funding crisis and other administrative difficulties caused by the shift from one statewide Capital Collateral Representative to the three offices.

On June 25, the court issued an order continuing the tolling until Oct. 1, but making no ruling with respect to the claim of a right to adequately funded postconviction counsel under the Florida Constitution. The court ordered the three CCRC's to file updated inventories in October. It also directed the State to advise the court of its progress in enlisting private counsel under newly enacted legislation providing for payment to private counsel for postconviction work for cases in which the CCRC's are unable to designate counsel due to lack of adequate funding. (This new legislation provides for payment to private counsel in the amount of $100/hour for a total of 640 hours, or $64,000, plus $20,000 for all costs (including experts) to take the case from the initial postconviction work through review by the Supreme Court. It does not address training needs.)

With this filing, the Florida Supreme Court became the second high state court to be asked to impose a moratorium. (A petition to the Illinois Supreme Court to impose a moratorium is discussed earlier in this report.)

The ABA resolution also is cited In State of Washington v. Stenson,132 Wash. 2d 668, 940 P. 2d 1239 (1997), cert. denied,---U.S.---, 188 S. Ct.1193, 140 L. Ed. 2d 323 (1998), denying an appeal of a death sentence, with one judge dissenting. In this case, Darold Ray Stenson was convicted first of shooting his wife, then shooting his friend and business associate to conceal his wife's murder. On appeal, Stenson had raised several issues relating to the guilt and penalty phases of the trial, including the denial of his right to change lawyers or to proceed pro se after he and his lawyer had disagreed about how to handle the trial. Noting that the ABA had called for a moratorium on executions "until all jurisdictions implement policies to ensure that death penalty cases are administered fairly, impartially and in accordance with due process, and to minimize the risk that innocent persons may be executed," the court stated, "While we agree with the goals stated by the ABA, . . . absent a constitutional deficiency, we do not have authority to suspend the operation of the death penalty in this state." The dissenting judge wrote that the conflict between the defendant and his counsel "went to the very soul of the proceeding," that Stenson's rights had been violated, and that the majority had disregarded clear precedent and invited reversal in federal court.

In another notable case that addresses a major concern cited in the ABA resolution, the Mississippi Supreme Court ruled in August 1998 that death row inmates should have paid representation throughout the appeals process. In the State of Mississippi v. Jackson,

98-DP-00708-SCT, the court granted Henry Curtis Jackson Jr.'s petition to have the state provide attorney compensation and reasonable litigation expenses for his postconviction appeal. The majority opinion noted that Mississippi's Uniform Postconviction Collateral Relief Act (UPCCRA) provides a limited procedure to present objections or claims that could not have been raised previously at trial or on direct appeal, but ruled that without state compensated representation "the [indigent] inmate is in effect denied meaningful access to the courts by lack of funds for this state-provided remedy." The court also urged the state legislature to institute a statewide public defender system.

Legal Scholarship

As of July 1998, the resolution also has been referenced in at least four law review articles. An article entitled, "Section 2262 (C) of the Antiterrorism and Effective Death Penalty Act of 1996: Towards the Precipice of Unconstitutionality?" (7 Seton Hall Const. L.J. 879, Summer 1997) argues that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) moves toward unconstitutionality. The ABA resolution "highlights the argument that there are still inherent deficiencies in the application of the death penalty in the United States," the article states. "Due to the irreversible nature of capital punishment . . . procedural due process mandates that the protections afforded to a state capital defendant be as expansive as possible . . .. Congress cannot and should not be allowed to destroy the [Supreme] Court's role through the passage of legislation designed to promote an efficient, as opposed to a just, result."

The ABA resolution also is discussed in the article, "Habeas Corpus and the New Federalism After the Anti-Terrorism and Effective Death Penalty Act of 1996" (30 J. Marshall L. Rev. 337, Winter, 1997), an examination of the effect of the AEDPA on habeas corpus. The article notes that the ABA had pointed to the passage of the AEDPA, which "significantly curtails the availability of federal habeas corpus to death row inmates," as one of the most troubling of a series of recent congressional actions affecting constitutional protections of death row inmates in the appeals process. The article further notes that the Clinton Administration, which supported passage of the AEDPA, certainly did not foresee the ABA's response. In signing the legislation, the article states, the President acknowledged that "some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this because I am confident that Federal Courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary."

Another article, "Disparate Impact on Death Row: M.L.B. and the Indigent's Right to Counsel at Capital State Postconviction Proceedings" (107 Yale L.J. 2211, May 1998), argues that indigents have a right to counsel in capital state postconviction proceedings under the Fourteenth Amendment's Equal Protection clause. The article contends that the Supreme Court should use the fundamental right of access to the criminal process initially recognized in the 1956 case of Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), as well as wealth-based disparate impact theory, to shift the current state of equal protection law to provide postconviction counsel for indigent death row inmates. Noting the ABA call for a moratorium until the "situation improves," the author argues that "the Court needs to give death row inmates a meaningful first sho[t]" and reconsider the fundamental right to equal protection.

A fourth article, "Barring Foul Blows: An Argument for a Per Se Reversible-Error Rule for Prosecutors' Use of Religious Arguments in the Sentencing Phase of Capital Cases (50 Vand. L. Rev. 1335, October 1997), refers to the resolution in arguing in favor of a per se reversible-error rule for prosecutors' use of religious arguments in the sentencing phase of capital cases. The article states that, under current law, a death sentence must be reversed if the prosecutor invokes a religious argument during the sentencing phase. However, "courts consistently find that other factors sufficiently mitigate any danger of unfair prejudice," according to the article. When the evidence is weighed heavily, a contextual analysis of the religious argument, which should focus on the effect of the error on the jury, becomes a "correct result test" rather than an "effect on the judgment test," the article continues. The defendant then must demonstrate prejudice, not simply harmless error, an unfair burden on him or her under Eighth Amendment and Due Process guarantees. Contending that "a rule of automatic reversal for a prosecutor's improper religious arguments will eliminate this particular unfair, powerful prejudice against the defendant," the article notes that the ABA adopted its resolution because of concerns about precisely this kind of lack of "adequate procedures . . . to ensure fairness to the defendant."

Numerous other law review articles, studies, and reports relating to aspects of the death penalty resolution are listed in Appendix G of this report. Of particular note are articles and special issues of the Georgia State Law Review, the Cornell Law Review, and the Duke University School of Law's Journal of Law and Contemporary Problems, all of which report on proceedings of symposia or other scholarly reaction to the resolution. In addition, the background research for the moratorium resolution, undertaken by Randall Coyne and Lyn Entzeroth in 1996, is published in the Georgetown Journal on Fighting Poverty.

IMPACTS BEYOND THE LEGAL COMMUNITY

When the ABA adopted its death penalty resolution in February 1997, it quickly garnered support from prominent national organizations and prompted the formation of national coalitions working for adoption of the moratorium in all jurisdictions that have capital punishment. International human rights organizations and several foreign governments were among the first to commend the ABA for speaking out about the problems inherent in the administration of capital punishment in the United States today. Recent high profile capital cases and executions in this country and the trend toward abolition of the death penalty altogether in other countries have heightened interest in and responses to the ABA resolution on both fronts. Among the most comprehensive of these responses is the April 1998 Report of the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, which supports the ABA resolution and concludes that capital punishment practices in this country violate international treaties and human rights norms.

Non-legal Organizations in the United States

In addition to endorsements of other national legal organizations, noted earlier in this report, the ABA resolution has prompted statements of support from many prominent non-legal organizations.

In June 1997, 36 professional, religious, civil liberties, and human rights organizations issued a Joint Statement endorsing the ABA resolution and calling for a nationwide moratorium on the death penalty in the United States. The statement was issued to mark the 25th anniversary of the U.S. Supreme Court's 1972 decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (per curiam), which struck down then-existing capital punishment laws as unconstitutionally arbitrary and lacking in standards that would ensure consistency and fairness in application and implementation. The Statement says that, 25 years later, states' practices are at least as arbitrary and unfair as they were in 1972. "Poverty, geographic location, and minority status continue to bear heavily on competency of representation and overall chances of being put to death," according to the statement. In addition, "state and federal lawmakers embrace measures expanding the risk of executing innocent people by reducing the legal safeguards which in the past have removed scores of innocent people from death row, many within hours of execution." The Statement also notes that persons who were juveniles when they committed their crimes and persons with mental retardation continue to be executed, that habeas corpus appeals have been curtailed, and that Congress has eliminated funding for Postconviction Defender Organizations, the major source of representation for poor death row inmates.

In July 1997, the American Medical Association considered a resolution supporting the ABA resolution. Because the ABA resolution focuses on problems in the legal system rather than on medical or physician issues, the AMA concluded that the resolution topic was beyond the traditional scope of AMA resolutions. However, the AMA did, in the alternative, reaffirm its policy that "a physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a state execution."

In October 1997, the Executive Board of the American Public Health Association (APHA) endorsed the ABA resolution and noted in a letter to ABA Executive Director Robert A. Stein that the APHA already has a resolution stating that health personnel should not be required or expected to assist in legally authorized executions.

Several organizations have initiated moratorium campaigns among their members or the public. One of the largest such efforts is "Moratorium Now!", a campaign launched by the Quixote Center' Equal Justice USA project in fall 1997 to have 2,000 churches, city councils, civic groups, and other institutions and organizations endorse the call for a moratorium on executions by the year 2001. As of August 1998, the campaign had enlisted more than 250 groups as supporters, and the organizers have developed a nationwide network to promote the initiative.

According to "Moratorium Now!", state and local campaigns by other groups also have been organized, including a "Campaign for a Moratorium" in Philadelphia and the AIllinois Death Penalty Moratorium Campaign's in several cities in Illinois. In California, Death Penalty Focus has begun a campaign, and Amnesty International USA is organizing regional campaigns.

International Organizations

The ABA resolution took on special significance in the international arena because of events outside the United States in the last several years in which the death penalty issue has played a notable role. In South Africa, for example, the new government decided to reject capital punishment as a criminal justice sanction in its constitution. The European Union countries decided that no country authorizing the use of capital punishment could be a member of the Union. In Malawi, the President declared a moratorium in July 1997 and commuted the sentences of all death row inmates there.

When the ABA passed its resolution, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions already was planning to undertake a study of capital punishment in the United States. He had been asked to investigate concerns that the guarantees and safeguards set forth in international instruments relating to fair trial procedures and special restrictions on the death penalty are not being observed in the United States. The ABA resolution and accompanying report provided additional impetus and information for his work.

The UN report, formally released in April 1998, recommends that the United States stop executions until it can ensure that death penalty cases are administered fairly and impartially, in accordance with due process.

During his mission, Special Rapporteur Bacre Waly Ndiaye met with federal officials, visited the states of New York, Florida, Texas, and California, and spoke with victims' families and representatives of nongovernmental organizations, including several ABA members knowledgeable about death penalty issues. The Rapporteur included in his report a copy of the ABA's 1997 resolution.

The Rapporteur states that the increase in the use of the death penalty in the United States runs counter to the international trend toward decreasing the number of offenses punishable by death and decisions in many countries around the world (e.g., Poland, the Czech Republic, South Africa) to abolish the death penalty. In the United States, Ndiaye observed, the tendency has been to increase the application of the death penalty on both state and federal levels.

The report notes that the relatively small number of eligible murderers who actually receive a death sentence in the United States are not necessarily those who commit the most heinous crimes and that many factors other than the crime itself, including race and economic status of victims and defendants, appear to influence the imposition of a death sentence. Those who are able to afford expert legal representation also are less likely to be sentenced to death than those who cannot.

The Rapporteur's report highlights what he sees as political influences affecting the use of the death penalty, particularly during election campaigns. The report states that the system of election of judges to relatively short terms of office and the practice of requesting financial contributions for election campaigns, particularly from members of the bar and the public, could put at risk the independence and impartiality of elected members of the judiciary. Further, the report states, prosecutorial discretion whether to seek the death penalty raises serious concerns regarding the fairness of its administration.

The Rapporteur also notes that people who have reservations about the death penalty are less likely to sit as jurors and argues that a "death qualified jury" will be predisposed to impose the harshest sentence. Such a jury does not represent the conscience of the community as a whole, but only the views of the part of the community that favors capital punishment, he concludes.

The Rapporteur states that because of the definitive nature of a death sentence, a process leading to its imposition must comply fully with the highest safeguards and fair trial standards and must be in accordance with restrictions imposed by international law. Of particular concern, his report says, are the current practices of making juveniles eligible for the death penalty and executing mentally retarded persons, which the report cites as violations of international law. The Rapporteur states that he deplores these practices as a disturbing step backwards in the promotion and protection of the right to life under international human rights norms.

The UN report ultimately echoes the late U. S. Supreme Court Justice Thurgood Marshall's statement in Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980): "The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system--and perhaps any criminal justice system--is unable to perform." The report recommends several actions for the United States to consider, including adoption of a moratorium on executions in accordance with the ABA resolution and a UN resolution calling upon all jurisdictions that still authorize the death penalty to work toward abolishing it; adequate public defender systems; and education of government officials at all levels about their international treaty obligations under international treaties to which the United States is a party.

In April 1998, the UN Commission on Human Rights adopted a resolution that calls upon the UN Secretary-General to submit an annual report assessing changes in death penalty law and practice worldwide and a quinquennial report on capital punishment and implementation of safeguards to protect the rights of individuals facing the death penalty.

CONCLUSION

As this report indicates, the long and difficult process necessary to implement the ABA resolution has begun. Even at this preliminary stage, however, it is clear that educating lawyers, legislators, and the public about the concerns reflected in the resolution has made a difference. There is now more awareness of the erosion of due process in the administration of the death penalty than was obvious at the time the ABA adopted the resolution, and some efforts to address the issue are under way. It now is even more imperative, therefore, that the ABA and others continue their efforts until the objectives of the ABA resolution are realized.