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


Fifth Circuit Reverses Texas’s Denial of Appointed Counsel and Expert Funding Relating to Scott Panetti’s Competency to Be Executed

July 11, 2017 – The U.S. Court of Appeals for the Fifth Circuit today ruled in the case of Scott Panetti, holding that the district court abused its discretion in denying Panetti funding for counsel and experts and vacating any previous findings of fact regarding his competency to be executed.  It reasoned that Panetti was denied due process under existing Texas law, and there was no appropriate justification for denying him funding for experts and other investigative resources.

Scott Panetti was convicted for capital murder and sentenced to death in 1995 after killing his wife’s parents in front of his wife and daughter. Panetti, who has a long history of schizophrenia and institutionalization, insisted upon representing himself throughout the legal process. Many appeals followed, some reaching as far as the United States Supreme Court, before the most recent appeal arguing that he is currently incompetent to be executed came before the Fifth Circuit.

Panetti’s appeal is grounded in the claim that Ford v. Wainwright and due process mandate that he should have been provided both the time to prepare filings as well as appointment of counsel and funding for expert assistance in demonstrating his further deteriorated mental state. The Fifth Circuit found that “to refuse to give [Panetti] the time and resources critical to review [his] present condition is error,” and although “the core deficiencies underlying our finding of denial of due process have commendably been alleviated by the Texas legislature[,]” ending there would leave Panetti “in the dust.” 

The ABA has followed this case closely - submitting a letter to Governor Rick Perry in 2014 urging him to stay Mr. Panetti’s execution and allow for a complete and up-to-date consideration of his mental health status, and an amicus brief in 2007 when the case was before the U.S. Supreme Court. In our brief, the ABA argued that execution of a mentally ill offender should occur only if the offender is aware of the nature and purpose of the punishment and appreciates its personal application in his or her case, because, to survive constitutional scrutiny, capital punishment should be able to serve the purpose of retribution. 


Click here to see today’s Fifth Circuit’s decision.


Project Leader Publishes Annual Update on Death Penalty


Project Steering Committee member, Ronald J. Tabak, authored the comprehensive and up-to-date Chapter on the Death Penalty in the ABA’s The State of Criminal Justice 2017. You can find his death penalty chapter online here, and can buy the complete book here if you want a thorough report on the major issues, trends, and significant changes in the U.S. criminal justice system. The 2017 volume contains 22 chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2016-2017 that address criminal justice issues. Mr. Tabak’s chapter notes the Project’s work on severe mental illness reform, several of our recent educational programs, and editorial support of the featured Human Rights magazine issue that came out earlier this year. 


ABA Letter Expresses Concerns Regarding the Case of Virginia Death-Row Inmate William Morva


June 28, 2017 - ABA President Linda Klein sent a letter to the Governor of Virginia, expressing concerns regarding the case of Virginia death-row inmate William Morva, who is scheduled to be executed on July 6 and whose petition for executive clemency is now before the Governor’s Office. 


The ABA is particularly concerned with the significant evidence of Mr. Morva's long history of severe mental illness. Indeed, while the ABA does not oppose or support capital punishment per se, it has long had an interest in ensuring that the death penalty is not imposed on individuals who do not have the highest culpability for the most serious crimes. Based on the same principles that underlied the Supreme Court's reasoning in prohibiting capital punishment for individuals with intellectual disability and juveniles, the ABA opposes the execution of individuals with severe mental disorders or disabilities present either at the time of their crime or at the time of their execution. (See ABA Mental Illness Resolution, 122-A, 2006.


In Mr. Morva’s case, a thorough post-conviction investigation that included his complete psychiatric history led a clinical expert to find that he suffers from delusional disorder (DSM-5 § 297.1), a form of psychosis which causes him to be unable to distinguish reality from delusions. She further found, based on all the interviews and medical records she had, that Mr. Morva was likely experiencing delusions at the time of his crimes that made him believe that people were trying to kill him. Additionally, there are reports that he continues to show symptoms to this day, as he refuses to accept visits from his family and lawyers, believing that they are part of a conspiracy to kill him.


The evidence suggests that Mr. Morva’s severe mental disorder was present at the time of his crimes and still is present as he is approaching his execution date. It is for these reasons that the ABA urges the Governor to give full consideration to the issue of his severe mental illness and how it may have impacted his understanding of reality and ability to control his actions before deciding whether to grant or deny his clemency petition.


Click here to read more information about William Morva's case.

Click here to learn about our Mental Illness Initiative.



Supreme Court Rules Ineffective Assistance of Post-Conviction Counsel Does Not Excuse Procedural Default


June 27, 2017 – Yesterday, the U.S. Supreme Court held in Davila v. Davis that the exception to procedural default in habeas corpus claims announced in Martinez v. Ryan and Trevino v. Thaler should not be extended to claims that post-conviction counsel’s ineffective representation and failure to raise timely claims compounded appellate counsel’s ineffectiveness.


Davila was convicted of capital murder in 2008 after firing a rifle at a group of people, believing one of them was a member of a rival street gang. He stated in his confession that he did not intend to kill the “other guys,” leading the jury to hear an instruction on transferred intent that said it could find the defendant guilty of murder if it determined he intended to kill one person but instead killed a different person. The defendant’s trial lawyer objected to this instruction but was overruled, and Davila was convicted and sentenced to death.


Davila appealed his conviction, but his appellate counsel did not challenge the instruction on transferred intent. When this appeal was unsuccessful, Davila sought post-conviction relief, but that attorney also did not challenge the instruction about transferred intent nor did he challenge the failure of his appellate counsel to raise the issue on direct appeal. With new counsel, Davila later sought habeas relief in federal District Court, where he invoked Martinez and Trevino, arguing that his appellate and state post-conviction counsel provided ineffective assistance by failing to challenge the jury instruction.


Davila argued that allowing a claim of ineffective assistance of appellate counsel to evade review is equally as concerning as allowing one of ineffective assistance of trial counsel to escape review.  However, the U.S. Supreme Court noted that although the Constitution guarantees the right to a criminal trial, a prisoner does not have a right to counsel in state post-conviction.  The Court then held that attorney error cannot provide cause to excuse a default if the Constitution does not guarantee the assistance of counsel at that stage; thus, “the ineffective assistance of post-conviction counsel does not provide cause to excuse the procedural default of ineffective-assistance-of-appellate-counsel claims.” The Court reasoned that claims of ineffective assistance of appellate counsel do not pose the same risk as claims of ineffective assistance of trial counsel that a trial error will escape review.


The Court’s decision is available here.



Supreme Court Rules in Favor of Defendant in McWilliams v. Dunn and Holds that State Must Provide a Defendant With a Competent Mental Health Expert


June 19, 2017- Today, the U.S. Supreme Court held in McWilliams v. Dunn that Alabama violated the rights afforded to James McWilliams under Ake v. Oklahoma. Under Ake, the state must provide access to a “competent psychiatrist” to indigent defendants if they suffer from a mental condition that may be relevant in their court proceedings. The psychiatrist must “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

McWilliams is an indigent defendant who was diagnosed with a documented mental condition, Organic Personality Syndrome. After his trial in 1986, the court appointed a neuropsychologist to examine him before his sentencing hearing. Two days before the hearing, the neuropsychologist issued a report noting that he had some “genuine neuropsychological problems.” The trial judge refused to grant his attorneys a continuance to further investigate these problems, sentencing McWilliams to death. The Alabama Court of Criminal Appeals upheld his conviction in 1991 on the grounds that his examination was sufficient, and the federal habeas court and Eleventh Circuit denied him relief. However, the Supreme Court held yesterday that the examination was insufficient as the neuropsychologist did not have a chance to help defense counsel evaluate, prepare, and present a defense. This error, the Court held, was “contrary to” or an “unreasonable application” of “clearly established Federal law.”


The Court did not decide whether the error had a “substantial and injurious effect” necessary to grant habeas relief, remanding this question to the Eleventh Circuit. The court also did not decide the question of whether the psychiatrist had to belong specifically to the defense team, instead reaffirming the Ake rule that the expert be available to the defense and independent from the prosecution to the extent that he could fulfill his duties. The ABA has long had a policy that indigent defendants should be provided with access to mental health experts during trial and sentencing. This policy is outlined in ABA Criminal Justice Mental Health Standards 7-3.3 and 7-9.4. More broadly, the ABA also calls for people with demonstrated severe mental illnesses present at the time of the crime to be exempt from the death penalty.



ABA Files Amicus Brief to U.S. Supreme Court in Ayestas v. Davis, Asks Court to Require Adequate Funding for Post-Conviction Investigations


June 16, 2017 - Today, the American Bar Association filed an amicus brief in Ayestas v. Davis, asking the U.S. Supreme Court to reverse a decision by the U.S. Fifth Circuit Court of Appeals setting a “substantial need” rule for funding for investigation of claims in post-conviction capital cases.


The Supreme Court has long recognized that well established standards of professional conduct require that counsel conduct an independent and adequate investigation of the facts at each stage of the process. The Court has also recognized that the statutory guarantee of counsel in federal habeas proceedings – a critical and highly complex stage of litigation – must be meaningful, and that petitioners are entitled to “reasonably necessary” services to support their representation. Importance of habeas counsel’s duty to investigate is also well supported by the ABA Death Penalty Guidelines and ABA Criminal Justice standards.


However, in 2016, the 5th Circuit found that defendants like Carlos Ayestas must show a “substantial need” for investigative services to receive funding – a standard higher than the “reasonable need” standard defined by federal statute. In an amicus curiae brief filed on June 16, the ABA argues it is virtually impossible to meet this standard without the funding needed to develop the case, and creates a catch-22 for defendants like Ayestas: they can’t get the funding needed to hire investigators or mental health experts without showing a court the facts that the expert would be hired to discover. In its brief, the ABA calls the appeals court’s rule “restrictive and circular.”


In addition, Carlos Ayestas argues that his original counsel was ineffective, which requires as a result that his current attorneys conduct an “independent and adequate investigation of the facts.” As noted by the ABA brief, an ineffective assistance of counsel claim is particularly likely to need additional investigation, since a prior ineffective attorney will not have gathered all the required information. In contexts like this one, the 5th Circuit “substantial need” test blocks essential funding and prevents counsel from meeting their ethical obligations.


Although certiorari was granted in April 2017, the U.S. Supreme Court has not yet scheduled the oral argument.


Special thanks to Clifford Sloan, Donald Salzman and Brendan Cants at Skadden for their work on the brief.


Resources Available for April 27 Event “Rushing To Execution " in St. Louis, Missouri


April 25, 2017 - All of the CLE materials and other relevant resources for Thursday's program, “Rushing To Execution – Ethical Issues and Procedural Barriers in Christeson v. Roper"  are now available for download or online review. Click HERE to see those materials. Additionally, there is still time to register to attend the Program. If you would like to join us in person and receive Missouri CLE credit, please email dueprocess@americanbar.org. Finally, if you cannot attend in person, please check us out on Twitter at 2:30pm CST for a live feed of the event. 



ABA President Writes to Arkansas Governor to Express Concerns with Upcoming Executions


April 17, 2017 - Earlier this year, Arkansas scheduled eight executions to take place in ten days because one of its lethal injection drugs expires at the end of this month. This plan raised several concerns for the Death Penalty Due Process Review Project. With our Project’s support and encouragement, ABA President Linda Klein wrote to Arkansas Governor Asa Hutchinson on April 11, 2017.


The ABA letter pointed out that several of the condemned men are represented by the same lawyers, creating both an ethical conflict and a significant burden, as “any time and resources spent on behalf of one client facing death will necessarily be at the expense of another.” This untenable workload, combined with a shortened clemency process, curtails due process and individualized review. Additionally, the ABA expressed concern that two of the men slated for execution have documented severe mental illnesses, which can compound the difficulties for the attorneys, who need time to examine and raise claims related to competency to be executed. Plus, the ABA has long had a position opposing the death penalty for individuals with severe mental illness. This is an area that our Project already focuses significant attention, helping many states – including Arkansas – consider legal reforms in this area. Finally, because of the expertise built through our Capital Clemency Resource Initiative collaboration, we were able to share resources that were used to support a legal challenge to the shortened clemency process in Arkansas. 


Former Governors Voice Bipartisan Support for a Severe Mental Illness Exemption from the Death Penalty


April 3, 2017 - In a recent op-ed published by The Washington Post, former governors Bob Taft of Ohio (pictured, left) and Joseph E. Kernan of Indiana (pictured, right) express bipartisan support for proposed legislation that would prohibit the use of the death penalty against individuals with severe mental illness. The American Bar Association has supported a prohibition on the use of the death penalty in cases involving severe mental illness since 2006


Gov. Taft, a former Republican governor of Ohio, and Gov. Kernan, a former Democratic governor of Indiana, call the execution of defendants with severe mental disorders or disabilities "an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts." Indeed, they argue, these defendants, like those with intellectual disability, are less culpable, more vulnerable to wrongful conviction, and often erroneously perceived by jurors as more dangerous. The former Governors highlight the recent executions of Adam Ward in Texas, who exhibited symptoms of bipolar disorder by the age of four, and decorated Vietnam War veteran Andrew Brannan in Georgia, whom the Department of Veterans Affairs classified as 100% disabled as a result of his combat-related PTSD and bipolar disorder, as examples of defendants with severe mental illness who "continue to be sentenced to death and executed" in the United States.


The Governors also note that legislators in seven states – Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia – have introduced bills during the 2017 legislative session that would prohibit the death penalty for people with severe mental illness. Gov. Taft and Gov. Kernan urge state legislatures to pass these measures, including in their own states of Ohio and Indiana, saying, "This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency."


Read more:



Join us on April 27 in St. Louis, MO for “Rushing To Execution – Ethical Issues and Procedural Barriers in Christeson v. Roper"  


St. Louis


On April 27, 2017, from 2:30-4:30pm at the St. Louis University School of Law, legal experts and capital defenders will address the profound and irreversible impacts the narrow habeas corpus standards can have in death penalty cases, particularly when combined with lawyers’ conflicts of interest and limited funding for representation. The panelists will use Christeson v. Roper as a timely example of how these issues can quickly compound and infect every level of judicial review – resulting in Mark Christeson’s execution in January 2017 without having his intellectual disability ever considered on its merits by a federal court. Just two years earlier the U.S. Supreme Court had stayed his execution with mere hours to go, finding that he was entitled to new lawyers in place of the attorneys that had filed his federal appeal almost 4 months late and then concealed that failure for almost 9 years. While Mr. Christeson did get new lawyers, they struggled to get funds for their representation and convince the courts that Mr. Christeson should not pay the ultimate price for his prior attorneys’ errors. This case illustrates how current habeas standards can undermine procedural justice for the accused, and will facilitate a lively discussion of the ethical duties of lawyers who represent clients facing the death penalty and the courts’ role in ensuring robust review.


Please join us to hear from:


  • Prof. Lawrence Fox, Yale Law School and Partner at Drinker, Biddle, & Reath LLP
  • Prof. Peter Joy, Washington University in St. Louis School of Law
  • Jennifer Merrigan, The Phillips Black Project
  • Joseph Perkovich, The Phillips Black Project
  • Introductory Remarks by the Honorable Michael Wolff, St. Louis University School of Law and Missouri Supreme Court (Ret.)

Attendees can receive 2 hours of Missouri CLE ethics credit.  Please email dueprocess@americanbar.org to RSVP.




U.S. Supreme Court decides Moore v. Texas, notes Project's Assessment


March 28, 2017 – Today the U.S. Supreme Court decided Moore v. Texas, holding that Texas’s precedent of using non-clinical standards to determine whether a capital defendant has an intellectual disability is unconstitutional. Although the Court acknowledged that its decisions in Atkins v. Virginia (2002) and Hall v. Florida (2014) gave states discretion in determining whether a defendant facing the death penalty had an intellectual disability, it held that this discretion was not “unfettered” and did not allow states to completely disregard current medical standards. 

Specifically, the Court found that when the Texas Court of Criminal Appeals (CCA) focused on the adaptive strengths of defendant Bobby Moore, it disregarded current medical practice – as the medical community focuses on adaptive deficits, and warns against noting improvements in controlled settings, such as prisons. The CCA also erred in relying on lay stereotypes of people with intellectual disability in Briseno. Therefore, the Court ruled that the Briseno factors adopted by Texas in 2004 create “an unacceptable risk that persons with intellectual disability will be executed,” similarly to the strict-IQ score definition used by Florida until it was ruled unconstitutional in Hall v. Florida (2014).

In the ABA’s amicus curiae brief filed in Moore in 2016, we raised several criticisms of the Texas standard as articulated in Briseno and used in practice. Noting that Texas is one of 12 states that has carried out 65% of all executions since capital punishment was reinstated in 1976, the brief featured the findings of the Project’s Texas Assessment on the Death Penalty that comprehensively examined the administration of capital punishment in the state. The Texas Assessment found that “Texas does not determine intellectual disability according to clinical standards” and that the standards Texas used “creates an unacceptable risk that persons with mental retardation will receive the death penalty or be executed.”

In fact, the Moore opinion specifically refers to the Project’s Texas Assessment and its criticism of the Briseno factors, as an illustration of the fact that “[g]iven the Briseno factors’ flaws, it is unsurprising that scholars and experts have long criticized the factors.”  We were happy to be a small part of this important ruling.



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.


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