ABA Death Penalty Due Process Review Project

Death Penalty Due Process Review Project "A system that will take life must first give justice."

- Former ABA President John J. Curtin, Jr.
Project Released Research Paper In 2016, the Project released a comprehensive White Paper on Severe Mental Illness & Death Penalty that addresses medical, legal and policy concerns with executing those with mental illness.
State Assessments "Key Findings" Report In November 2013, the Project released "The State of the Modern Death Penalty," a report summarizing the major findings from our 12 state death penalty assessments (2003-2013).

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Recent News & Announcements


Project's Mental Illness Initiative Fellow to give NAPD webinar on Severe Mental Illness and the Death Penalty


March 17, 2017 - Next April 12, 2017, Project's Mental Illness Initiative Fellow Aurelie Tabuteau Mangels will give a webinar presentation on "Extending Atkins": Severe Mental Illness and the Death Penalty," hosted by the National Association for Public Defense (NAPD). NAPD members can register for the webinar for free, while non-members can also register for a fee: click here to register.


The webinar session will explore policy reform efforts and litigation themes used by attorneys to extend the Atkins capital punishment bar to other categories of offenders, in particular individuals with severe mental illness. The webinar will start with a brief review of the AtkinsRoper and Hallcases, with an emphasis on how their language can be extended to those with severe mental illness. It will then include a discussion of what is considered severe mental illness, before delving into the legal and public policy arguments in favor of a severe mental illness categorical exemption. Finally, the webinar will include an overview of the current public policy reform effort in seven states.


If you can't join us on April 12, the webinar will also be archived for future reference. 


Email us at aurelie.tabuteaumangels@americanbar.org or visit NAPD's website for more information!


New article by Project Director explores the impacts of state-specific studies of the death penalty


February 22, 2017 - A new article in The Champion (NACDL’s signature magazine) by Project Director Misty Thomas discusses the importance of single state examinations of capital punishment. The article outlines how the ABA State Death Penalty Assessments and other important research have led to a wide range of reforms, fueled legislation, inspired judicial review, and fostered renewed public debate. Additionally, she addresses some of the ways that litigators can use state research in their advocacy. Finally, Ms. Thomas calls for improved collection of and access to data about the administration of the death penalty and additional research to continue to shine light on how it functions in practice.


ABA urges high court to review decision denying lawyers standing in an indigent capital case


February 13, 2017 — The ABA filed an amicus brief asking the U.S. Supreme Court to review a procedural compromise for appeals related to indigent legal representation in capital cases. The ABA brief supports the Habeas Corpus Resource Center, which assists indigent men and women under sentence of death in California, and the Federal Public Defender for the District of Arizona. At issue is a compromise worked out in Congress under the Antiterrorism and Effective Death Penalty Act (AEDPA) in which states can have stronger finality rules in federal habeas reviews in return for policies that ensure the right of counsel for indigent capital defendants.

The plaintiffs are challenging the implementation of the compromise, contending that it does not adequately protect the rights of indigent capital defendants to competent counsel. The ABA brief argues that lawyer groups do have standing to challenge the implementation because their work is directly impacted.  Further, the ABA argues that “there is a difference between a state adopting standards and ensuring that appointed counsel meet those standards.” 


Project Serves as Guest Editor for Human Rights Magazine’s New Issue on Capital Punishment


January 2017  -The Section of Civil Rights and Social Justice’s new issue of Human Rights magazine (Volume 42, No. 2) is focused exclusively on the death penalty and features excellent and timely articles from renowned experts on capital punishment, including several members of the Project’s Steering Committee and staff:  

  • “Forty-Year Retrospective of the Death Penalty,” By Seth Miller and Misty Thomas
  • “Rare as Hens’ Teeth: The New Geography of the American Death Penalty,” By Brandon L. Garrett
  • “Through the Glass Darkly: What Oklahoma’s Lethal Injection Regime Tells Us about Secrecy, Incompetence, Disregard, and Experimentation Nationwide,” By Megan McCracken and Jennifer Moreno
  • “Intellectual Disability, Innocence, Race, and the Future of the American Death Penalty,” By John H. Blume
  • “The Racial Origins of the Supreme Court’s Death Penalty Oversight,” By Carol S. Steiker and Jordan M. Steiker
  • “Have Mercy: New Opportunities for Commutations in Death Penalty Cases,” By Laura Schaefer and Michael L. Radelet
  • “Mental Illness, Diminished Responsibility, and the Death Penalty: A New Frontier,” By Richard J. Bonnie
  • “Confronting Implicit Bias: An Imperative for Judges in Capital Prosecutions,” By Gregory S. Parks and Hon. Andre M. Davis
  • “Public Safety Officials on the Death Penalty,” By Gerald Galloway
  • “Human Rights Hero: Pennsylvania Governor Tom Wolf,” By Virginia Sloan

The full issue is now available online.  


ABA Representative W. Lawrence Fitch Testifies before Virginia House Committee in Support of Severe Mental Illness Exclusion Bill


January 30, 2017 - The ABA submitted legislative testimony to the Criminal Law subcommittee of the Virginia House Courts of Justice Committee in support of House Bill 1522. The bill, sponsored by Del. Jay Leftwich (R-Chesapeake), intended to create a severe mental illness exclusion from the death penalty for individuals with qualifying severe mental disorders or disabilities present at the time of their crime.


ABA testimony was presented by W. Lawrence Fitch, a Professor at University of Maryland School of Law and the Reporter for the ABA Criminal Justice/ Mental Health Standards project.


In its testimony, the ABA declared: “Not only do we think this exception would fill an important gap in how the law handles mental illness, it would also help minimize the risk of other types of errors that can occur when individuals with mental illness face serious criminal charges.” Professor Fitch also explained why Virginia’s current legal system does not already protect severely mentally ill individuals from the death penalty, and detailed the reasons why the ABA is concerned with the use of the ultimate punishment for these defendants. Indeed, their illness is often erroneously considered as “aggravating” by jurors when the law intends it to be considered only as a mitigating factor, they tend to be more vulnerable to being wrongly accused and convicted as well as less able to assist their defense counsel.


The ABA testimony prompted a lively and in-depth exchange between Professor Fitch and legislators, who asked questions about the ABA position and the issue generally. The National Alliance on Mental Illness (NAMI) of Virginia, the disAbility Law Center of Virginia and Mental Health America of Virginia also spoke in support of the bill. Although the bill was eventually tabled by voice vote, the hearing allowed for a very fruitful exchange with legislators, and helped continue build energy for reform on this issue in Virginia.


Read more about the Virginia effort:



Project Co-Sponsored "The Constitutional Crisis with Florida's Death Penalty Post-Hurst and Its Implications for Additional States"  at the ABA Midyear Meeting


February 3, 2017 - The Project co-hosted a timely discussion of the U.S. Supreme Court's 2016 decision in Hurst v. Florida, holding that Florida’s death penalty sentencing scheme violated the Sixth Amendment’s right to trial by a jury. That ruling, which now requires that a jury – rather than a judge – make the important factual determinations of whether the defendant should be sentenced to death, brought an immediate halt to executions in Florida, led to extensive subsequent litigation in state courts, and has made uncertain the fate of many defendants still on death row and in pending cases.  The panel had a lively discussion on the varied implications – both expected and unexpected – of the Hurst decision on the future implementation of the death penalty in Florida and several other states around the country, including Alabama, Delaware, and elsewhere. The expert panelists included:


  • Martha Barnett, Senior Partner (Ret.), Holland & Knight; ABA President (2000-2001)
  • The Honorable O.H. Eaton Jr., Judge (Ret.), 18th Judicial Circuit of Florida
  • Karen Gottlieb, Co-Director, Florida Center for Capital Representation, Florida International University Law School
  • Martin McClain, Florida capital post-conviction attorney who litigated Hurst retroactivity before the Florida Supreme Court

Click HERE for a copy of the Panel's handout on relevant significant U.S. Supreme Court and state supreme court cases.

Click HERE for a memo from Judge Eaton, who was not able to join the program in person, but sent a memorandum explaining some of his continuing concerns with the resolution of Hurst issues in Florida.



Severe Mental Illness and the Death Penalty Report Released


December 6, 2016 - In conjunction with our National Summit currently underway at Georgetown University, the Death Penalty Due Process Review Project is proud to release its new White Paper, Severe Mental Illness and the Death Penalty, which provides a comprehensive examination of how mental illness is currently treated in our capital punishment and criminal justice systems, what is typically meant by "severe mental illness", why current laws are inadequate and contrary to constitutional standards that exist for other vulnerable capital defendants, and why people with severe mental illness should not be subject to the death penalty as a public policy matter. The Paper also describes the ABA's history working on this issue and why our organization (and many others) have determined that an exemption for severe mental illness is an appropriate and reform to our capital punishment systems. We hope that this Paper will be a great resource for the public, policymakers, lawyers, and others who are concerned about how our justice system treats people with serious mental health disorders.

Click here to read the remarks given by ABA President-elect Hilarie Bass at the Summit.


Project Announces Upcoming National Summit on Severe Mental Illness and the Death Penalty in Partnership With Equitas Foundation and Georgetown University


November 23, 2016 - The American Bar Association’s Death Penalty Due Process Review Project, the Equitas Foundation and Georgetown University are pleased to announce their upcoming National Summit on Severe Mental Illness and the Death Penalty on December 6 – 7, 2016, at Georgetown University in Washington D.C.


The Summit will convene a select group of national and local mental health advocates, criminal justice reform partners and capital litigators to advance our goals of supporting coalitions working on severe mental illness exemption legislation in their states and raising the profile of this important issue nationally. Attendees from around the nation will educate each other about how different participants are approaching this timely issue in their unique professional roles, identify ways each group will be a critical partner in reform efforts, and discuss collaborative strategies for education and reform. This important discussion will be particularly timely, as legislators in eight to nine states will introduce bills creating a severe mental illness exemption from the death penalty in the 2017 Legislative sessions of their respective states.


The two-day Summit will also include a keynote luncheon: “Taking Action on the National Consensus to End the Execution of Individuals with Severe Mental Illness,” featuring a panel discussion among the following distinguished speakers:


  • Hilarie Bass, J.D., President-Elect, American Bar Association
  • Ronald S. Honberg, J.D., National Director, Policy and Legal Affairs, National Alliance on Mental Illness
  • Deanne Ottaviano, J.D., General Counsel, American Psychological Association


These expert panelists will provide attendees with a better understanding of the complex issue of sentencing people with severe mental illness to death, explain the reasons why their organizations oppose the death penalty for people experiencing severe mental illness, and discuss steps towards reform.


For more information about the event: http://www.merage-equitas.org/events/national-summit-severe-mental-illness-death-penalty/



ABA President writes about the unintended consequences of California’s Proposition 66


November 3, 2016 – The Sacramento Bee published a timely article by ABA President Linda A. Klein that discusses the pitfalls and unintended consequences of Proposition 66. While ostensibly intended to streamline California’s broken death penalty process, Ms. Klein instead argues that Prop 66 could lead to inexperienced and ineffective defense counsel taking on complex capital cases, an increase in procedural mistakes due to strict deadlines, and longer, more expensive trials. Ms. Klein stated in her article:


“The ABA is sympathetic to the frustrations of the families, victims and defendants who have suffered from the massive delays and inefficiencies in California’s death penalty system. But people deserve changes that will address the problems effectively, not diminish the fairness and accuracy of our justice system. We should not cut corners in the administration of the death penalty. Unfortunately, that is what Proposition 66 would do.”


Read the full article here.

ABA Representative W. Lawrence Fitch Testifies in Front of Virginia House Committee in Support of Severe Mental Illness Exclusion Bill


02/07/2017 - On Monday, January 30, the ABA submitted legislative testimony to the Criminal Law subcommittee of the Virginia House Courts of Justice Committee in support of House Bill 1522. The bill, sponsored by Del. Jay Leftwich (R-Chesapeake), intended to create a severe mental illness exclusion from the death penalty for individuals with qualifying severe mental disorders or disabilities present at the time of their crime.


A short version of the ABA testimony was presented by W. Lawrence Fitch, a Professor at University of Maryland Francis King Carey School of Law and the Reporter for the American Bar Association Criminal Justice/ Mental Health Standards project, and the full version of the testimony was shared with all subcommittee members.


In its testimony, the ABA declared: “Not only do we think this exception would fill an important gap in how the law handles mental illness, it would also help minimize the risk of other types of errors that can occur when individuals with mental illness face serious criminal charges.” Professor Fitch also explained why Virginia’s current legal system does not already protect severely mentally ill individuals from the death penalty, and detailed the reasons why the ABA is concerned with the use of the ultimate punishment for these defendants. Indeed, their illness is often erroneously considered as “aggravating” by jurors when the law intends it to be considered only as a mitigating factor, they tend to be more vulnerable to being wrongly accused and convicted as well as less able to assist their defense counsel.


The presentation of the testimony was followed by a lively and in-depth exchange between Professor Fitch and the members of the subcommittee, who asked several questions about the ABA position and the issue of several mental illness and the death penalty. The National Alliance on Mental Illness (NAMI) of Virginia, the disAbility Law Center of Virginia and Mental Health America of Virginia also spoke in support of the bill. Although the bill was eventually tabled by voice vote, the hearing allowed for a very fruitful exchange with legislators, and helped continue build energy for reform on this issue in Virginia.


Read more about the Virginia effort:

ABA Representative W. Lawrence Fitch Testifies in Front of Virginia House Committee in Support of Severe Mental Illness Exclusion Bill


02/07/2017 - On Monday, January 30, the ABA submitted legislative testimony to the Criminal Law subcommittee of the Virginia House Courts of Justice Committee in support of House Bill 1522. The bill, sponsored by Del. Jay Leftwich (R-Chesapeake), intended to create a severe mental illness exclusion from the death penalty for individuals with qualifying severe mental disorders or disabilities present at the time of their crime.


A short version of the ABA testimony was presented by W. Lawrence Fitch, a Professor at University of Maryland Francis King Carey School of Law and the Reporter for the American Bar Association Criminal Justice/ Mental Health Standards project, and the full version of the testimony was shared with all subcommittee members.


In its testimony, the ABA declared: “Not only do we think this exception would fill an important gap in how the law handles mental illness, it would also help minimize the risk of other types of errors that can occur when individuals with mental illness face serious criminal charges.” Professor Fitch also explained why Virginia’s current legal system does not already protect severely mentally ill individuals from the death penalty, and detailed the reasons why the ABA is concerned with the use of the ultimate punishment for these defendants. Indeed, their illness is often erroneously considered as “aggravating” by jurors when the law intends it to be considered only as a mitigating factor, they tend to be more vulnerable to being wrongly accused and convicted as well as less able to assist their defense counsel.


The presentation of the testimony was followed by a lively and in-depth exchange between Professor Fitch and the members of the subcommittee, who asked several questions about the ABA position and the issue of several mental illness and the death penalty. The National Alliance on Mental Illness (NAMI) of Virginia, the disAbility Law Center of Virginia and Mental Health America of Virginia also spoke in support of the bill. Although the bill was eventually tabled by voice vote, the hearing allowed for a very fruitful exchange with legislators, and helped continue build energy for reform on this issue in Virginia.


Read more about the Virginia effort:

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