American Bar Association Death Penalty Moratorium Q&A October 2000   What is the ABA’s position on the death penalty? The ABA has no position on the death penalty per se, except that it opposes capital punishment in the case of the mentally retarded and those who committed crimes when they were juveniles. What is the ABA position on a death penalty moratorium? The ABA adopted a resolution in 1997 that called on states to declare a temporary moratorium on the death penalty, unless and until they could ensure the fair and impartial administration of capital punishment and the minimization of the risk that innocent persons might be executed. There are many individuals and groups within the ABA and the organized bar eager to work with states to help them examine their death penalty procedures to ensure that justice is administered fairly, and to work on establishing moratoria until those safeguards are met. Why did the ABA adopt the moratorium resolution? The ABA has studied the legal landscape of death penalty issues, and has found that too many defendants in these cases are not getting the due process guaranteed them under the Constitution. The adequacy of legal representation of those charged with capital crimes is a major concern. Many death penalty states have no working public defender systems, and many simply assign lawyers at random from a general list. The defendant’s life ends up entrusted to an often underqualified and overburdened lawyer who may have no experience with criminal law at all, let alone with death penalty cases. The U.S. Supreme Court and the Congress have dramatically restricted the ability of our federal courts to review petitions of inmates who claim their state death sentences were imposed in violation of the Constitution or federal law. Studies show racial bias and poverty continue to play too great a role in determining who is sentenced to death. Isn’t the moratorium just a first step toward eliminating capital punishment? No. As the moratorium resolution makes clear, the ABA called for a halt to executions only after its repeated efforts to encourage systemic reform had failed. Aren’t moratorium supporters primarily death penalty opponents? Polls show that two-thirds of Americans, including 60 percent of those in favor of capital punishment, support a death penalty moratorium until it can be shown that it is imposed fairly. There is also bi-partisan support for a moratorium. Governor George Ryan of Illinois, a Republican who supports the death penalty, imposed a moratorium on capital punishment in his state this January. Democrats and Republicans in both Houses of Congress support either a moratorium or significant changes to death penalty procedures. Pat Robertson and George Will are among those who have expressed their support for a moratorium. Illinois Governor Ryan’s call for a moratorium on the death penalty in that state, along with media coverage of cases of innocent people on death row, has led to increased scrutiny of administration of the death penalty. How do innocent people end up on death row, and what is the ABA doing about this? As lawyers, we at the ABA are very concerned about the fair administration of justice in this country, and nowhere is that more important than as it applies to death penalty cases. We are troubled when we hear about defendants on death row who are found to be innocent; it tells us that obviously the system is seriously flawed. We are also concerned that the process for selecting those offenders who will be put to death is a fair one, free from prejudice and caprice. It is vitally important that states examine their systems to ensure that they have implemented procedures to guarantee fundamental fairness and due process. As former ABA President Jack Curtin once said, "A system that will take a life must first give justice." Isn’t the fact that innocent people are discovered before they are executed a sign that the system does work? That might be true if the discoveries and results were due to the workings of the legal system. In an appalling number of cases, they are not. In Illinois, for example, journalism students at Northwestern University have been instrumental in effecting the release of many of the innocents on that state’s death row. However, as the Washington Post noted in a recent editorial about innocent people being freed from death row, "there are undoubtedly others, already executed or awaiting the hangman, who are victims of mistakes that will never be proven or acknowledged." Are there any other moratorium efforts underway? Illinois Governor Ryan is the only governor so far to determine that his state’s system was flawed, and to declare a moratorium. But other states are working on these issues as well. Moratorium resolutions are pending in eight states. Twenty-four local governments, from major cities like Detroit and Atlanta to smaller communities like Hayes, Texas, have passed resolutions calling for moratoria in their own states. Several major death penalty bills are pending in Congress. Does the ABA support DNA testing to reduce the chances of innocent people being sent to death row? The prospect of innocent people being on death row is deplorable. We need to make sure that fairness is the rule at every level of the justice system, and particularly when human life is at stake. The American system of justice holds as its hallmark the protection of the innocent. At its 2000 Annual Meeting in July, the ABA House of Delegates approved a recommendation supporting the use of DNA testing, and making it available to defendants upon request. DNA evidence has proven to be an effective tool to improve the reliability of the criminal justice system, and even to reveal errors of the past. Any such tool that can be used to identify criminals, and also to exonerate the wrongfully convicted, should be employed to ensure that our justice system works fairly, and without bias or error. If DNA testing has been so instrumental in exonerating several death row inmates, why don’t all states allow it? It is true that there have been more than 70 post-conviction DNA exonerations in North America (at least 67 in the U.S. and 6 in Canada), including eight people on death row. But under current state and federal law, it is difficult to obtain post-conviction DNA testing – and new trials based on the results of such testing – because of strict time limits on introducing newly discovered evidence. In many instances the biological evidence has been either lost or destroyed. What are lawyers doing to support a death penalty moratorium? Several state and local bars have adopted policies similar to the ABA’s moratorium policy. Among them are the bar associations of: Boston, California Conference of Delegates, Chicago Council of Lawyers, Connecticut, Charlotte-Albermarle County (Virginia), Illinois, Louisiana, Massachusetts, Massachusetts Academy of Trial Lawyers, New Jersey, Pennsylvania and Philadelphia. The Ohio State 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," and the Washington State Bar Association passed a resolution calling for a study of the death penalty. Similar activities are underway in state and local bars in Florida, Kentucky, Missouri, New Mexico, North Carolina and Tennessee. In working toward a moratorium on the death penalty, what do you say to the families of victims? We cannot forget the victims of crime and their families. As states evaluate whether capital punishment is imposed fairly, it will provide a service that is critical to every single one of us – not only defendants but also victims, their families and all of us in society. It is no service to victims’ families to punish the wrong person and to allow criminals to roam free, or to subject them to endless proceedings that are inevitably painful. We are all victimized when the wrong people are punished, and we are all victimized by repetitive and prolonged proceedings when the system miscarries and attempts to correct mistakes.