December 18, 2020

ABA Advocacy on Behalf of Death Row Prisoners

Death Penalty Representative Project Expands Focus

Since its creation in 1986, the ABA’s Death Penalty Representation Project (DPRP) has worked diligently.

Since its creation in 1986, the ABA’s Death Penalty Representation Project (DPRP) has worked diligently.

Since its creation in 1986, the ABA’s Death Penalty Representation Project (DPRP) has worked diligently to ensure that no prisoner facing a death sentence proceeds through the legal system without representation by counsel.

The cornerstone of DPRP’s work to ensure justice, fair process and effective representation remains ensuring access to counsel for every prisoner facing a death sentence in the U.S. Fortunately, the availability of counsel to death row prisoners has improved in the last decade, and, as a result, DPRP’s work has expanded. While the Project still places more than a dozen death penalty matters with pro bono attorneys each year, DPRP has been able to focus more on participating in ABA advocacy involving troubling death penalty cases, as well as directly assisting death penalty legal teams.

While the American Bar Association does not take a position on the morality or constitutionality of the death penalty itself, we are committed to ensuring that no death sentence is carried out without due process and zealous representation by counsel through every stage of the legal proceedings, including in applications for executive clemency.

The DPRP works closely with the ABA Governmental Affairs Office to develop presidential communications and with the Office of General Counsel on the submission of amicus briefs in death penalty cases that have particularly egregious facts or involve claims addressed by ABA policy. In nearly half the cases in which the ABA has weighed in over the last five years, a letter from the ABA president preceded an executive reprieve or judicial stay. One example is Kevin Cooper’s case in California. As the ABA had recommended in a 2016 letter, the state ordered DNA testing and is carefully reviewing Cooper’s claims of innocence.

The Capital Clemency Resource Initiative (CCRI), created in 2015, is another example of the ABA’s growing leadership in capital defense advocacy. Through their CCRI work, Project staff have gained unique expertise in the law surrounding defense counsel obligations, clemency procedures and due process requirements and have assisted capital defense teams accordingly. In 2017, DPRP worked with federal defenders in Arkansas amid the state’s attempt to execute eight of their clients in 10 days. As a result of litigation conceived of by the Project, Jason McGehee — one of four prisoners ultimately spared from execution — received a judicial stay after a hearing in federal district court that found a statutory violation of the state’s clemency process.

As the COVID-19 pandemic has created yet new hurdles for capital defense attorneys and prisoners with death sentences, DPRP has risen to the challenge. Earlier this year, Project staff worked closely with litigators and pro bono counsel in Tennessee who brought a federal civil rights lawsuit challenging an August 4, 2020, execution date on the grounds that compliance with the basic due process protections of the clemency process was impossible given the pandemic. Before the lawsuit was resolved, Tennessee Governor Bill Lee issued the prisoner a reprieve of execution — the first the governor issued since assuming office — citing concerns over due process and clemency. In November, ABA President Refo wrote President Trump urging a reprieve of the three federal executions still scheduled in 2020, citing concerns over process, counsel safety and basic fairness in each case.

Through its Death Penalty Representation Project, the ABA will continue to serve a critical role advocating for adherence to the rule of law in capital cases across the nation and working tirelessly to ensure that no death sentence is carried out without due process of law and zealous representation by counsel throughout every stage of the legal proceedings.