Summer 2006

Section Proposes ABA Policy on Death Penalty, Gender Identity

The Section will present two Reports with Recommendations to the House of Delegates at the 2006 Annual Meeting. The first, co-sponsored by the Criminal Justice Section, the Commission on Mental and Physical Disability Law, the ABA Death Penalty Moratorium Implementation Project, the ABA Death Penalty Representation Project, the National Lesbian and Gay Law Association, and the Beverly Hills Bar Association, urges jurisdictions that impose the death penalty to implement a number of policies and procedures regarding people with mental illness. These policies include not sentencing to death defendants who at the time of the offense, had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.

The recommendation clarifies that a disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision. It also addresses the issue of mental disorder or disability after sentencing; detailing grounds for precluding execution, procedure in cases involving prisoners seeking to forgo or terminate post-conviction proceedings, procedure in cases involving prisoners unable to assist counsel in post-conviction proceedings, and procedure in cases involving prisoners unable to understand the punishment or its purpose.

The Recommendation also reiterates that in adopting this policy, apart from those who would be exempted from execution under its express terms, and apart from existing Association policies relating to offenders who are mentally retarded or under the age of 18 at the time of the commission of the offenses, the Association takes no position on the death penalty.

The second Section-sponsored Report with Recommendation addresses discrimination on the basis of gender expression and is co-sponsored by the Bar Association of San Francisco, the Beverly Hills Bar Association, and the National Lesbian and Gay Law Association. It urges the federal government, the states, local governments, and territories to enact legislation prohibiting discrimination on the basis of actual or perceived gender identity or expression, in employment, housing, and public accommodations.

The ABA already has policies condemning discrimination on the basis of race, gender, religion, handicap, and sexual orientation, and has adopted policies that call for federal prohibition of discrimination in the areas of employment, housing, public accommodations, credit, education, and public funding.

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