Moratorium: A Growing Movement
By Martha W. Barnett
"A system that would take a life must first give justice."
This statement by former American Bar Association (ABA) President Jack Curtin captures the sentiments embodied in the ABA's call for a moratorium on executions until those jurisdictions with capital punishment can ensure fundamental fairness and due process in capital cases and minimize the risk that innocent people will be executed.
Except for opposing the execution of individuals who are mentally retarded or under the age of eighteen at the time they committed their crimes, the ABA never has taken a position on capital punishment per se. However, in 1997, the Section of Individual Rights and Responsibilities initiated, and the ABA overwhelmingly approved, a resolution calling for a nationwide moratorium on executions. We did so out of the conviction that the legal profession no longer can ignore the systemic problems that long have existed in capital cases. These problems have been exacerbated in recent years by lack of funding, training, and assistance for defense and appellate counsel and severe restrictions on rights of appeal in state and federal courts. The resolution focuses on issues of particular concern to the ABA, as expressed in prior policy positions that now are cornerstones of the moratorium resolution:
- the provision of competent, adequately funded counsel at all stages of the proceedings;
- the assurance of full and independent state and federal review of habeas claims;
- the elimination of racial discrimination in capital case processes; and
- an end to execution of offenders who are mentally retarded or who were juveniles at the time they committed capital offenses.
Because of the importance of this core justice system issue, I have made the moratorium effort a priority of my year as ABA president. A number of recent developments, many at the grassroots level, led me to issue in October 2000 a national "Call to Action: A Moratorium on Executions" to promote the moratorium nationwide. Lawyers and policymakers representing all sides of the debate-prosecutors, defense counsel, private lawyers, and state and federal officials-attended a conference at the Carter Center in Atlanta to identify strategies for individual lawyers and organized bars to help bring about a moratorium in capital jurisdictions. Speakers included former First Lady Rosalyn Carter, N.Y.U. Professor Tony Amsterdam, and Illinois Governor George Ryan. An ABA task force established to help implement the strategies agreed upon at the conference has, with the president's office, produced a resource kit for bars to use in promoting the moratorium in their states. Among the kit materials are "protocols" that the Section of Individual Rights and Responsibilities has produced as a guide for states' full and comprehensive examination of real or potential problems in death penalty laws and processes in their jurisdictions.
In several reports since 1997, the Section also has documented developments related to the moratorium resolution. They point to real momentum toward achieving a nationwide moratorium in the years ahead.
In the last year, legislators in at least nineteen states have considered proposals, and dozens of local governments, from major metropolitan cities such as Atlanta to smaller municipalities such as Hays, Texas, have passed resolutions calling for moratoriums. In addition, at least nineteen state and local bar associations have adopted resolutions calling for moratoriums in their states.
A total of seventeen states, along with the federal government, now are on record as opposing the execution of the mentally retarded; along with the twelve states that bar capital punishment altogether, a majority of states now prohibit the execution of individuals with mental retardation. Fifteen states and the federal government bar executions of offenders who were juveniles at the time of their crimes. As ABA president, I have urged the governors of Texas and Georgia not to carry out executions of mentally retarded offenders and juvenile offenders, respectively, and have supported efforts in other states to address these concerns legislatively.
Concern that innocent persons may be executed in a system that is far from failsafe has prompted a significant part of the growing support for a moratorium. Early in 2000, the governor of Illinois became the first to declare a moratorium on executions, citing well-founded concerns about the convictions of thirteen people who were sent to death row in his state only to have their sentences overturned because they later were found to be innocent. The number of death row exonerations in the United States since 1973 is now ninety-six. Each passing week seems to bring news of another person whose claims of innocence are being newly examined through the use of DNA or other methods. Although there may be a wide disparity of views on capital punishment, there is almost universal consensus that we should not be executing people who are innocent.
One of the most intractable problems in death penalty administration is the severe lack of competent and adequately compensated counsel for indigent defendants and death row inmates seeking appeals. Many states set unconscionably low limits on the compensation a court-appointed lawyer can receive, and a number of states cap reimbursable expenses at levels that do not permit reasonable investigation of cases.
The elimination of federal funding for postconviction defender organizations in the states also has seriously undermined the support system for lawyers taking these complex and demanding cases. As a result, the shortage of competent lawyers for death row prisoners has never been greater. It has affected particularly the ABA's efforts to recruit private lawyers to take these cases on a pro bono basis.
The ABA is addressing the lack of volunteer lawyers in a number of ways. Our Death Penalty Representation Project recruits and trains pro bono firms and individual lawyers to handle trials, certiorari petitions, appeals, and clemency proceedings. It also provides fellowships for lawyers to serve as "resource counsel" in nonprofit capital representation offices to assist volunteer lawyers handling capital cases.
The ABA Section of Litigation has taken a leadership role by providing support for lawyers to recruit, support, mentor, and train volunteer counsel. These lawyers also track capital cases and have provided startling information on the number of death row prisoners who have been abandoned by their court-appointed counsel, have never had their cases examined, have been time-barred from pursuing relief in federal courts, or who have been scheduled for execution despite the fact that they are underrepresented.
The severity of the problems, and the potential for addressing them under fairer and less pressured conditions, underscore the importance of achieving a moratorium now. "Today," according to the report supporting the ABA resolution, "the administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency." As lawyers, we have the opportunity, and indeed the obligation, to correct this fundamental injustice.
Martha W. Barnett is president of the American Bar Association for 2000-01.
