IRR Section Publishes "Protocols" for Review of Death Penalty Laws and Processes
By James E. Coleman, Jr., and Penny Wakefield
In the four years since the Section of Individual Rights and Responsibilities sponsored the ABA resolution calling for a moratorium on executions in this country until flaws in the capital punishment system are eliminated, public and governmental interest in examining the fairness of the death penalty has grown exponentially. To help those undertaking reviews of death penalty laws and processes in individual states, as well as those interested in monitoring such reviews, the Section recently has developed a new publication entitled Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States.
The Guide is a series of "protocols" that encourage an examination of (1) the actors in and stages of the death penalty process and ways in which those actors may contribute to flaws that can lead to arbitrary and unfair imposition of capital punishment and, in some cases, to the wrongful conviction of innocent people; and (2) the treatment of vulnerable populations-individuals convicted of killing white people; members of racial minorities; individuals who were under age eighteen at the time they committed capital offenses; and mentally retarded and mentally ill defendants and death row inmates-in the capital punishment system.
The protocols address eight specific areas of concern: defense services, procedural restrictions, clemency, jury instruction, judicial independence, racial discrimination, and the sentencing of juveniles and mentally retarded or mentally ill defendants in capital cases. Each protocol contains a brief introductory overview of the issues involved in the area being examined, a list of questions to be considered in a comprehensive review, and a list of recommendations for improving administration of the system in the area.
The Guide notes that "[b]oth the subjects covered and the guidance offered are based largely upon principles and policies that underlie the ABA moratorium resolution" and "are not intended to be exhaustive."
Rather, the protocols are designed to direct attention to areas that experience has shown contribute to errors in administration of the death penalty. For example, the Guide focuses first on the long-recognized problems caused by states' failure to appoint and adequately compensate lawyers who are competent to represent capital defendants and death row inmates. This failure is a major cause of serious errors in capital cases, including wrongful conviction and sentencing to death of innocent people. The ABA has been pressing for decades for jurisdictions to correct the situation, and with the increasing numbers of cases in which incompetent counsel and unavailability of counsel were issues in the 1990s, the problem became a driving force behind the ABA moratorium resolution. The need for national attention to this matter was underscored further in a Columbia University study last year reporting that, in 68 percent of capital cases reviewed between 1973 and 1995, state and federal courts found errors sufficiently serious to require retrial or resentencing. The study cited lack of competent defense counsel as a prominent cause of such errors. Yet, under existing law, the very high legal standard for establishing a constitutional violation of the right to "effective assistance of counsel" and the lack of a judicial remedy for counsel incompetency in post-conviction proceedings mean that most convicted persons cannot obtain relief in the courts on these grounds.
"Although lawyers and the organized bar can provide valuable assistance through pro bono services, state governments have primary responsibility-indeed, a constitutional duty-to ensure adequate representation at every level in capital cases through appropriate appointment and compensation measures," the Guide states. The protocol addressing this subject is intended to help each capital jurisdiction conduct "an objective and comprehensive assessment of the current system and identif[y] . . . specific inadequacies and the means to eliminate them." The publication notes that areas not identified in the protocols may require examination in some jurisdictions and that issues raised in the protocols may not be equally problematic in all capital jurisdictions. Each capital jurisdiction, therefore, is urged to tailor its review to take into account issues that may be unique to that jurisdiction and to use the protocols as a floor, not a ceiling, for a review framework that ensures that all relevant factors are taken into full consideration.
For jurisdictions undertaking reviews, the Guide states, "the question is not whether, as a matter of morality, philosophy, or penological theory, there should be a death penalty." (The ABA itself has taken no position on that issue, beyond opposing imposition of the death penalty in cases involving mentally retarded individuals or individuals who were under age eighteen at the time they committed capital offenses.) "But each jurisdiction that imposes the death penalty has a duty to determine whether the system under which the penalty is imposed and carried out is flawed and, if so, to eliminate the flaws. These protocols are intended to help capital jurisdictions meet this fundamental obligation systematically and comprehensively." The Guide, developed by the Section's Death Penalty Committee, is available on the Section's Website at www.abanet.org/irr/pubs.html or in hard copy through the Section office (phone: 202/662-1030).
James E. Coleman, Jr., is a professor at Duke University School of Law in Durham, North Carolina. He is the immediate past chair of the Section of Individual Rights and Responsibilities of the American Bar Association.
Penny Wakefield is the director of the Section of Individual Rights and Responsibilities.
