Before Furman v. Georgia, 408 U.S. 238 (1972), there were relatively few U.S. Supreme Court challenges to the constitutionality of capital punishment, and none that dealt squarely with whether the death penalty violates the Eighth Amendment prohibition against cruel and unusual punishment. In Furman, however, the Court addressed this constitutional question and, in a series of five concurring opinions, held that the imposition of Georgia’s death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court so held because juries in Georgia (like those in many other states) had virtually total discretion in deciding whether to impose death sentences. As Justice Douglas stated in his opinion, "We deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws, no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12."

In response to this ruling, many states revised their death penalty statutes in an attempt to end the arbitrary decision-making rejected by the Court. These changes ranged from providing for mandatory death sentences for specified crimes (North Carolina) to stipulating aggravating factors that must be found in a case before a death sentence can be imposed (Georgia).

Four years later, the Court held in Gregg v. Georgia, 428 U.S. 153 (1976), that Georgia’s revised death penalty law complied with the standards set forth in Furman and therefore passed constitutional muster. Since then, death penalty laws and processes have survived repeated challenges on a variety of constitutional grounds.

Serious concerns have persisted, however—indeed, they have grown—regarding capital jurisdictions’ ability to ensure fairness in the imposition of capital punishment from case to case. As early as 1979, the American Bar Association (ABA) adopted a policy calling for improvements in the competency of counsel in capital cases. In 1982, the ABA approved a second policy calling for preservation, enhancement, and streamlining of state and federal courts’ authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings. A year later, the ABA adopted a policy opposing the execution of offenders who were under the age of 18 at the time they committed capital offenses, and in 1989, it adopted a policy opposing the execution of mentally retarded offenders. In 1988, the ABA called for the elimination of racial discrimination in capital sentencing on the basis of either the victim’s or the defendant’s race.

In an era of "tough on crime" policies and rising prison populations, however, few jurisdictions moved to adopt the principles set out in those ABA policies. Death rows grew, and jurisdictions sharply constrained inmates’ ability to challenge processes or sentences. In summer 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act, which appeared virtually to eliminate meaningful habeas corpus review in federal courts. On February 3, 1997, the ABA therefore took action that it hoped would focus more attention on systemic problems and lack of fairness in the application of the death penalty in the United States. While taking no position on the death penalty per se, the ABA adopted a resolution initiated by the Section of Individual Rights and Responsibilities that urges a halt to executions until concerns are addressed. Specifically, the resolution calls for capital jurisdictions to impose a moratorium on all executions until they can (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.

Since the moratorium resolution’s adoption, discussion and debate of the issues it addresses have grown substantially. The Individual Rights Section has issued three reports on these developments. The most recent, Toward Greater Awareness: The American Bar Association Call for a Moratorium on Executions Gains Ground (August 2001), notes that, since January 2000, 19 of the 38 states that authorize capital punishment have considered legislation calling for a moratorium on executions; in 36 of those 38, there are active and growing moratorium campaigns; and more than 60 state and local governmental bodies have adopted their own resolutions calling for a moratorium.

The Section also has developed a publication entitled, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, to serve as "Protocols" for jurisdictions undertaking reviews of death penalty-related laws and processes.

This work, and that of many other national, state, and local groups addressing death penalty issues, has prompted growing media coverage and analysis of capital case concerns and has made the public much more aware of and informed about problems in death penalty administration. The public also is much more likely than it was in 1997 to support a moratorium while problems are corrected. More judges are speaking out about systemic issues, and more political bodies are debating proposed reforms and moratorium initiatives on the merits.

The seemingly exponential growth of moratorium-related activity prompted the ABA, in Fall 2001, to establish the ABA Death Penalty Moratorium Implementation Project, housed within the Section of Individual Rights and Responsibilities, to monitor and promote progress toward a nationwide moratorium. The Project operates with a Steering Committee comprised of death penalty law and policy experts and a full-time Project Director and three Project Attorneys.

The Project encourages other bar associations to press for moratoriums in their jurisdictions and encourages state government leaders to establish moratoriums and undertake detailed examinations of capital punishment laws and processes in their jurisdictions. The Project collects and monitors data on domestic and international moratorium developments; works with interested ABA entities and state and local bars to address moratorium principles at those levels; encourages use of the ABA protocols to assess and publicize the depth and breadth of states’ reviews of their death penalty systems; conducts analyses of governmental and judicial responses to death penalty administration issues raised in the ABA resolution; and issues periodic reports on issues and developments relating to the moratorium initiative. For example, in August 2003, the Project issued a report entitled Building Momentum: The American Bar Associations Call For A Moratorium On Executions Takes Hold, discussing the impact of moratorium resolutions across the country from August 2001 through June 2003.