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).


Recent News & Announcements

Project publishes sample analysis of cost-savings from a severe mental illness exemption

June 20, 2018 - In 2006, the American Bar Association called for all jurisdictions which continue to use the death penalty to enact an exclusion for defendants who had a severe mental illness at the time of committing the crime. The Death Penalty Due Process Review Project has written extensively about the legal and ethical justifications for this policy and supported reform efforts. In considering the appropriateness of this reform, many policymakers have also cited the increased costs to states and localities of seeking and imposing capital punishment and have sought information about the potential cost savings of a severe mental illness exemption. To that end, analysts almost unanimously agree that the death penalty is significantly more expensive than cases where prosecutors seek a life sentence. No researchers, however, have yet undergone an empirical study on this topic or conclusively quantified the fiscal impact of a severe mental illness exclusion.


Today the ABA Death Penalty Due Process Review Project released “Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty: An Analysis of Tennessee Data,”  which presents a preliminary cost estimate of such an exclusion in the state of Tennessee. While the analysis is limited in its scope and data set, it presents the first reasonable estimation of how much money a state like Tennessee could save if it enacts such a policy—approximately $1.4 to $1.9 million a year. Moreover, this report offers a model methodology for others to apply to their states in order to better assess the public policy effects of a severe mental illness exclusion to the death penalty.


To read the report, click here.


U.S. Supreme Court Rules in McCoy v. Louisiana that Defense Counsel Must Follow the Client’s Wishes in Maintaining Innocence, Despite Risk of Death Penalty


May 18, 2018 – On Monday, the U.S. Supreme Court in McCoy v. Louisiana held that the Sixth Amendment guarantees a defendant’s right to insist that his or her legal counsel refrain from admitting guilt even if the counsel believes that admission is the best strategy for avoiding the death penalty.


Robert McCoy was accused of shooting and killing three people in Bossier City, Louisiana in 2008. Mr. McCoy has consistently maintained that he is innocent, claiming that he was out of the state when the killings occurred and that police officers shot the victims.  However, the defense lawyer appointed to represent Mr. McCoy at trial believed that the evidence against him was “overwhelming” and that, absent a concession that Mr. McCoy did kill the victims, a death sentence would be inevitable. Despite Mr. McCoy’s express rejection of this plan, his counsel openly declared during the 2011 trial that Mr. McCoy was indeed the killer, but did not have the mental capacity to commit first-degree murder, and urged the jury to be merciful in sentencing. Mr. McCoy made several objections to his trial lawyer’s concessions during trial and repeatedly requested a new lawyer, which the judge denied. Mr. McCoy appealed, arguing that he was denied effective counsel, but the Louisiana Supreme Court rejected the claim, finding that it was within a defense counsel’s prerogative to concede guilt. On appeal to the U.S. Supreme Court, the ABA filed an amicus brief in favor of Mr. McCoy in 2017, arguing that the decision of whether to concede guilt must be reserved for the client because the role of counsel is to assist in achieving the client’s objectives.


The U.S. Supreme Court agreed with the ABA’s position, finding that while defense counsel may make strategic choices regarding “[t]rial management,” defendants are accorded autonomy to decide the objective of their defense—including the decision to maintain their innocence. Thus, his trial counsel was not allowed to override Mr. McCoy’s objection to conceding guilt. Moreover, the Court found that the concession was a structural error, violating a fundamental principle related to a criminal defendant’s autonomy and requiring a new trial as the remedy.



ABA Testifies in Support of Missouri Bill That Would End Executions of Individuals with Severe Mental Illness


April 23, 2018 - On April 11, 2018, Judge Michael Wolff presented testimony on behalf of the American Bar Association before the Missouri Senate General Laws Committee in support of Senate Bill 1081. SB 1081, introduced by Senator John Rizzo (D), and its companion bill, HB 2509, introduced by Representative Tom Hannegan (R), would change Missouri laws to prohibit the execution of individuals who, at the time of the offense, suffered from a severe mental disorder that significantly impaired their capacity to exercise rational judgment in relation to conduct, conform their conduct to the requirements of law, or appreciate the nature, consequences, or wrongfulness of their conduct.


The ABA has opposed capital punishment for individuals with severe mental illness since 2006, when the Association, along with the American Psychiatric Association, American Psychological Association and the National Alliance on Mental Illness adopted ABA Resolution 122-A. In his testimony, Judge Michael Wolff, former Missouri Supreme Court judge and chief justice, and former dean of Saint Louis University Law School, expressed the Association’s support for SB 1081 and noted that this exemption would not only “fill an important gap in how the law handles mental illness,” but “it would also help minimize the risk of other types of errors that can occur when individuals with mental illness face serious criminal charges.” The testimony was well-received by committee members, who have not yet voted on the bill itself. The Project would like to express its gratitude to Steering Committee Member Judge Michael Wolff for delivering the testimony on behalf of the ABA.


To read the full testimony, click here.


Project's joint Capital Clemency Resource Initiative launches website focused on clemency in death penalty cases


March 28, 2018 — Our Capital Clemency Resource Initiative (CCRI) launched its website, www.capitalclemency.orgthis week. The CCRI's new site is designed to improve the public’s understanding of clemency in death penalty cases and provide critically needed resources for lawyers and other stakeholders.


After completing our State Assessments and tracking cases across the country, the Project found that, despite clemency’s historic role as the criminal justice system’s “fail safe” to prevent unjust sentences from being carried out, access to accurate information on clemency in death penalty cases has long been inadequate. To address these unmet needs, the Project came together with two other ABA entities—the Death Penalty Representation Project and the Commission on Disability Rights— in 2015 to form the CCRI.


“Unfortunately,” according to Laura Schaefer, counsel for the CCRI and staff attorney for the ABA’s Death Penalty Representation Project, “clemency often ends up being a hollow part of the death penalty process, in part because the inmate’s lawyers are not adequately prepared to advocate for their clients before governors or parole boards. It became clear to us at the ABA that both defenders and decision makers are eager for more targeted resources to be developed in this area of death penalty law—particularly as recent years have seen a marked increase in the number of capital cases in which clemency has been granted.”


The site, www.capitalclemency.org, provides:


  • Jurisdiction-specific pages that provide details about clemency in 12 death penalty states, including the procedures for requesting clemency, the relevant decision-maker(s), prior significant grants or denials, demographics of the state, and other important factors that might affect clemency review;

  • Text-searchable clemency petitions from different states, tagged by “theme” and issues raised;

  • Relevant ABA reports, guidelines, and other policy recommendations;

  • Court decisions, academic and magazine articles, and other resources regarding clemency representation in death penalty cases; and

  • Specialized training materials for lawyers who are currently representing or interested in representing death row clients, including the CCRI’s exclusive publication, “Representing Death-Sentenced Prisoners in Clemency: A Guide for Practitioners.”


ABA President Hilarie Bass said: “While our Association does not take a position on the death penalty generally, we do believe that every stage of a capital case – from arrest to execution – should be carried out with the utmost care. Clemency is supposed to be a critical part of this consideration, and our profession needs to do more to ensure that it is a meaningful review.”


New information will be added to the website on a regular basis, including additional jurisdiction-specific pages for the other current death penalty states.  Additionally, the CCRI plans to create new tools specifically for clemency decision makers in the coming year. 


Our staff is also available to provide additional support and guidance to capital clemency stakeholders on an individual basis.



U.S. Supreme Court Rules in Ayestas v. Davis that "Substantial Need" Standard Used by 5th Circuit was Too Restrictive for Habeas Petitioners Seeking Funds for Experts


March 21, 2018 – The U.S. Supreme Court ruled today in Ayestas v. Davis, holding that the U.S. Court of Appeals for the Fifth Circuit did not apply the correct standard when affirming a district court’s denial of for funding to hire experts and investigators. Ayestas’ team argued that these services were “reasonably necessary” under 18 U. S. C. §3599(f) to develop evidence that that both his trial and state habeas lawyers had been ineffective and had failed to adequately investigate his mental illness and addiction.  In today’s unanimous opinion, the Court found that the Fifth Circuit’s interpretation of §3599(f), requiring petitioners to show a “substantial need” for funding “is not a permissible reading of the statute.” Instead, district courts, when evaluating one of these funding requests, should apply the standard of “whether a reasonable attorney would regard the services as sufficiently important.”  Back in June 2017, the ABA filed an amicus curiae brief in Ayestas, asking the Court to reverse the Fifth Circuit and apply a plain language standard that is not unfairly “restrictive and circular,” just as the Court did in today’s opinion.



ABA Passes Resolution Opposing Use of the Death Penalty for Individuals Aged 21 Years Old or Younger at the Time of the Offense


February 6, 2018 – On Monday, February 5, 2018 the American Bar Association House of Delegates overwhelmingly passed a Resolution submitted by our Project and co-sponsored by the Section of Civil Rights and Social Justice. Through this Resolution, the ABA urges each jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or execution of any individual who was 21 years old or younger at the time of the offense.


The resolution proposes to extend the categorical bar on the death penalty for juveniles under the age of 18 decided by the Supreme Court in 2005 in Roper v. Simmons to those aged 21 or younger. In Roper, the Court said that juveniles’ vulnerability, comparative lack of control, and susceptibility to immature behavior makes them less culpable than adults. In the years since Roper, research has consistently shown that brain development actually continues beyond the age of 18, and that individuals aged 18 or 21 are more similar to juveniles under the age of 18 than to adults. Similarly to juveniles under 18, late adolescents show a lack of maturity and under-developed decision-making process, increased susceptibility to negative influences, emotional states, and social pressure and a highly fluid and mutable character.


Legal and societal developments reflect this increased understanding of late adolescents’ brain development. Indeed, since 2005, many states have been expanding the protections of the juvenile criminal justice and child welfare systems to cover individuals under 21. For example, 45 states allow youth up to the age of 21 to remain under the jurisdiction of the juvenile justice system. Both the child welfare and education systems in states across the country now extend their services to individuals through age 21.


While the ABA does not support or oppose the death penalty in principle, it has adopted and promotes numerous policies and protocols in order to promote fairness and accuracy in death penalty systems. In particular, the ABA opposes the death penalty for certain categories of individuals, who, because of their unique vulnerabilities, are not among the most culpable offenders for whom the death penalty must be reserved. This policy makes clear our recognition that individuals in late adolescence, in light of their ongoing neurological development, have a diminished culpability and therefore should not be subject to capital punishment.


Read Resolution 111 and its Report


ABA brief asks U.S. Supreme Court to overturn death penalty conviction in case where trial attorney conceded guilt over client’s objection


November 20, 2017 – Today the American Bar Association submitted an amicus curiae brief to the U.S. Supreme Court in the capital case of McCoy v. Louisiana. A Bossier Parish jury sentenced Mr. McCoy to death in 2011 for killing three family members of his estranged wife. Before his trial, Mr. McCoy explicitly expressed to his attorney that it was his desire to contest guilt, maintain his innocence, and to argue for acquittal. However, his attorney decided to instead admit Mr. McCoy’s guilt during opening statements to the jury, causing Mr. McCoy to verbally object and ask the court for a different lawyer. After the court refused his request, his trial attorney again admitted Mr. McCoy’s guilt during closing argument, even after Mr. McCoy had provided alibi testimony. Although the Louisiana Supreme Court upheld Mr. McCoy’s convictions and death sentence on appeal, the U.S. Supreme Court granted certiorari in September to consider the question of whether it is unconstitutional for a defense lawyer to admit an accused defendant’s guilt over his or her express objection.


The ABA’s brief argues that this is indeed a foundational principle of the attorney-client relationship – and an attorney must serve the interests of his or her client, and must respect the client’s right to make fundamental decisions regarding his or her case. The ABA’s position has been consistently reflected in several of our seminal resources that guide attorneys in their ethical duties and the practice of law, including the Model Rules of Professional Conduct, the Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, and the Criminal Justice Standards. The decision to admit guilt at trial is a decision that belongs solely to the competent client, and may not be disregarded by an attorney as a strategic decision. Oral arguments in McCoy v. Louisiana are expected to be held in early 2018.


The Project was proud to support the drafting and filing of this important brief and offers special thanks to Michael Gottlieb, Albert Giang, Bibeane Metsch, Matthew Schwartz, Peter Skinner, and John Zach of Boies Schiller Flexner LLP for their generous pro bono authorship of the brief. 


You can read the ABA News update about the case here

Texas Assessment Team Files Amicus Brief in Important Texas Intellectual Disability Case

November 1, 2017 – Members of the Project’s esteemed Texas Capital Punishment Assessment Team submitted an amicus curiae brief today in Ex Parte Bobby James Moore, which is currently pending before the Texas Court of Criminal Appeals (“CCA”). The case was remanded in March 2017 by the U.S. Supreme Court after it decided Moore v. Texas, which held that Texas’s use of non-clinical standards to determine whether a capital defendant has an intellectual disability was unconstitutional. Today’s excellent brief, written by pro bono counsel at Kilpatrick Townsend, is not on behalf of the ABA, but instead on behalf of Assessment Team members who believe the Court should grant Mr. Moore’s claim for Atkins relief and change his death sentence to life imprisonment.

The Assessment Team’s brief argues that the rule of law and fundamental fairness mandate that Texas adhere to the roadmap established by the Supreme Court for applying Atkins v. Virginia and Hall v. Florida, which, based on the record, mandates a finding that Mr. Moore is intellectually disabled and ineligible for the death penalty.  According to the brief, the Texas framework for determining intellectual disability, applied to Mr. Moore, does not comply with the Eighth Amendment because it is outdated and medically baseless, as it precludes current medical standards, such as the AAIDD’s amended definition of intellectual disability.

In Moore v. Texas, the U.S. Supreme Court provided an evolved, detailed roadmap for constitutionally analyzing Mr. Moore’s claim (and, in fact, cited the ABA’s Texas Capital Punishment Assessment Report as reflecting the fact that “scholars and experts have long criticized” the Texas precedent for determining intellectual disability in death cases.). Finally, the Assessment Team contends that remand to district court for further proceedings is unnecessary, as the Supreme Court has already resolved all relevant issues, and harmful to Mr. Moore, as additional proceedings could take several years and he has already been inappropriately on death row and in solitary confinement for decades.

Special thanks to W. Alan Wright, Joseph S. Dowdy, and Jonathan E. Polonsky of Kilpatrick Townsend & Stockton LLP for their generous work on the brief.

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