April 23, 2019 Document Library

ABA Death Penalty Policy

The following policies have been formally approved by the ABA House of Delegates, and the resolution text represents the official policy of the Association on the death penalty and related matters.

Note: Policy titles, descriptions, and keywords on this page are for identification purposes only and do not represent official association policy.

Unanimous Jury Resolution

Year Adopted: 2015
Meeting Where Adopted: Mid-Year
Policy Number: 2015 MY 108a
Subjects: Death Penalty, Sentencing, Juries
Short Description: Urges all governments that impose capital punishment, and the military, to require that before a court can impose a sentence of death, a jury must unanimously recommend or vote to impose that sentence, and the jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty. Resolution Text and Report>>

Execution Transparency Resolution

Year Adopted: 2015
Meeting Where Adopted: Mid-Year
Policy Number: 2015 MY 108b
Subjects: Death Penalty, Execution Protocols, Transparency
Short Description: Urges each jurisdiction that imposes capital punishment to promulgate execution protocols in an open and transparent manner and require public review and comment prior to final adoption of any execution protocol, and require disclosure to the public by all relevant agencies of all relevant information regarding execution procedures. Resolution Text and Report>>

Equitable Tolling Resolution

Year Adopted: 2011
Meeting Where Adopted: Mid-Year
Policy Number: 2011 MY 104B
Subjects: Habeas Corpus, Equitable Tolling, Effective Assistance of Counsel
Short Description: Urges Congress to amend 28 USC §§ 2244(d) and 2255(f)(1) to provide for equitable tolling of the one-year statute of limitations for filing for postconviction relief when a prisoner who has exercised appropriate diligence in pursuit of his or her post-conviction rights fails to meet the statutory deadline through no fault of his or her own. Resolution Text and Report>>

Adoption of Eight Guidelines of Public Defense

Year Adopted: 2009
Meeting Where Adopted: Annual
Policy Number: 2009 AM 119
Subjects: Effective Assistance of Counsel, Indigent Defense Systems, Caseload, Ethical Obligations
Short Description: Adopts the Eight Guidelines of Public Defense Related to Excessive Workloads, which contain essential steps to be taken by those organizations and lawyers who provide criminal defense services for persons in the United States who cannot afford to hire an attorney. Resolution Text and Report>>

Mental Illness Resolution

Year Adopted: 2006
Meeting Where Adopted: Annual
Policy Number: 2006 AM 122A
Subjects: Death Penalty, Intellectual Disability, Mental Illness, Waiver of Rights, Attorney/Client Relationship
Short Description: The Recommendation, without taking a position supporting or opposing the death penalty, calls upon each jurisdiction that imposes capital punishment to implement policies and procedures with respect to capital defendants and prisoners with intellectual disability or mental impairment or illness. Resolution Text and Report>>

Adoption of the 2003 ABA Guidelines

Year Adopted: 2003
Meeting Where Adopted: Mid-Year
Policy Number: 2003 MY 107
Subjects: Death Penalty, Effective Assistance of Counsel, Indigent Defense Systems, Caseload, Counsel Compensation, Ethical Obligations
Short Description: Adopts revisions to the black letter ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, dated February 2003 and recommends adoption of the Guidelines by death penalty jurisdictions. Resolution Text and Report>>

Capital Juries in Military Cases

Year Adopted: 2001
Meeting Where Adopted: Annual
Policy Number: 2001 AM 10A
Subjects: Death Penalty, Military, Juries
Short Description: Recommends that defendants in military capital cases be given the right to trial before court-martial panels whose size is fixed at twelve members. Currently such panels may vary in size, with the minimum number being five members. Resolution Text and Report>>

Death Penalty Moratorium Resolution

Year Adopted: 1997
Meeting Where Adopted: Mid-Year
Policy Number: 1997 MY 107
Subjects: Death Penalty, Moratorium, Effective Assistance of Counsel, Post-Conviction/Habeas Corpus, Racial Bias, Intellectual Disability, Juveniles
Short Description: Under this Recommendation, the Association would call upon each jurisdiction with capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that are consistent with longstanding American Bar Association policies. Resolution Text and Report>>

Appointment of Counsel in Military Capital Collateral Proceedings

Year Adopted: 1996
Meeting Where Adopted: Annual
Policy Number: 1996 AM 101B
Subjects: Death Penalty, Military, Post-Conviction/Habeas Corpus, Appointment of Counsel
Short Description: Under current law, a military death row inmate enjoys considerably less access to meaningful habeas corpus review than do either federal or state death row inmates because of the absence of a mandatory right to appointed counsel. The Recommendation would remedy this disparity by providing military inmates the same opportunity for counsel for post-conviction relief as now granted to state and federal civilian death row inmates. Resolution Text and Report>>

Federal Death Penalty and Native Americans

Year Adopted: 1991
Meeting Where Adopted: Annual
Policy Number: 1991 AM 117B
Subjects: Death Penalty, Native American Rights
Short Description: Resolves that the American Bar Association supports in principle legislative measures which would prevent or minimize any disproportionate effects federal death penalty legislation would have on Native Americans subject to federal jurisdiction. Resolution Text and Report>>

Proposed Revisions to Federal Habeas Statutes

Year Adopted: 1990
Meeting Where Adopted: Mid-Year
Policy Number: 1990 MY 115E
Subjects: Death Penalty, Post-Conviction/Habeas Corpus, Appointment of Counsel, Effective Assistance of Counsel, Statute of Limitations, Equitable Tolling
Short Description: The purpose of the recommendations is to enhance the efficiency and the fairness of State and federal review of State death penalty decisions. In furtherance of this goal, the recommendations support the need for competent counsel at all stages of death penalty proceedings. Failure to provide competent counsel would result in States being denied the privilege of relying on doctrines such as "presumption of correctness," requiring petitioners to exhaust State remedies, and procedural default rules. It is also recommended that a one-year statute of limitations be imposed for filing all post-conviction applications in capital cases. During this period a stay of execution would be in effect. As a means of bringing order to these often-chaotic proceedings, recommendations are made to consolidate a petitioner's claims and avoid mixed petitions, restrict filing of successive petitions, and set aside procedural barriers (e.g. required certificates of probable cause as a prerequisite to filing a habeas corpus petition). Resolution Text and Report>>

Adoption of 1989 ABA Guidelines

Year Adopted: 1989
Meeting Where Adopted: Mid-Year
Policy Number: 1989 MY 122
Subjects: Death Penalty, Effective Assistance of Counsel, Indigent Defense Systems, Caseload, Counsel Compensation, Ethical Obligations
Short Description: Recommends the adoption of Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Resolution Text and Report>>

Mental Retardation Resolution

Year Adopted: 1989
Meeting Where Adopted: Mid-Year
Policy Number: 1989 MY 110
Subjects: Death Penalty, Intellectual Disability
Short Description: The Recommendation urges that mentally retarded persons not be sentenced to death or executed, and that legislation be enacted barring such executions. Resolution Text and Report>>

Race Discrimination Resolution

Year Adopted: 1988
Meeting Where Adopted: Annual
Policy Number: 1988 AM 109
Subjects: Death Penalty, Racial Bias
Short Description: Recommends: 1) that the ABA oppose discrimination in capital sentencing on the basis of the race of either the victim or the defendant ; 2) that the ABA support the enactment of federal and state legislation which alleviates racial discrimination in capital sentencing and which provides that, absent successful rebuttal, a challenge to a death sentence can result in relief when there is a valid showing of a substantial disparity which is statistically explicable only by reference to the races of either victims or defendants1 and 3) that this resolution does not create a position for the ABA on whether or not capital punishment is an appropriate criminal sanction. Resolution Text and Report>>

Representation in Federal Habeas

Year Adopted: 1988
Meeting Where Adopted: Mid-Year
Policy Number: 1988 MY 125
Subjects: Death Penalty, Post-Conviction/Habeas Corpus, Appointment of Counsel, Counsel Compensation
Short Description:Support and encourage the implementation of provisions of the Criminal Justice Act Revision of 1986. Federal habeus corpus death penalty proceedings. Resolution Text and Report>>

Appointment of Two Attorneys in Capital Cases

Year Adopted: 1985
Meeting Where Adopted: Mid-Year
Policy Number: 
Subjects: Death Penalty, Indigent Defense Systems, Appointment of Counsel
Short Description: Recommend that when attorneys are appointed to represent defendants in the trial of death penalty cases, two attorneys shall be appointed as trial counsel to represent the defendant, and the primary attorney shall have substantial trial experience which includes the trial of serious felony cases. Resolution Text and Report>>

Juvenile Death Penalty Resolution

Year Adopted: 1983
Meeting Where Adopted: Annual
Policy Number: 
Subjects: Death Penalty, Juveniles
Short Description: Oppose in principle the imposition of capital punishment upon any person for any offense committed while under the age of 18. Resolution Text and Report>>

Opposition to Federal Habeas Legislation

Year Adopted: 1982
Meeting Where Adopted: Annual
Policy Number: 1982 AM 112d
Subjects: Death Penalty, Habeas Corpus
Short Description: The resolution opposes habeas corpus “reform” legislation, such as S. 653, Title VII of H.R. 4898, and S. 2216 of the 97th Congress, and calls for the appointment and monitoring of competent counsel at all stages of capital cases. Resolution Text and Report>>

Appointment and Compensation of Capital Post-Conviction Counsel

Year Adopted: 1979
Meeting Where Adopted: Mid-Year
Policy Number: 
Subjects: Death Penalty, Post-Conviction/Habeas Corpus, Indigent Defense Systems, Appointment of Counsel, Counsel Compensation
Short Description: Recommend that the U.S. Supreme Court adopt a rule providing for appointment of counsel to prepare petitions for discretionary review of state court convictions, including appropriate post-conviction or clemency petitions if necessary, in death penalty cases where the defendant cannot afford to hire counsel. Offer its assistance in identifying qualified attorneys. Recommend the amendment of the Criminal Justice Act (18 U.S.C. §3600A) to provide adequate compensation to counsel so appointed. Resolution Text and Report>>

Questions about ABA death penalty policy? Contact the Project at deathpenaltyproject@americanbar.org.