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November 02, 2018

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Background and Creation of the ABA Death Penalty Due Process Review Project

The U.S. Supreme Court Reaffirms Use of Capital Punishment

Before Furman v. Georgia, 408 U.S. 238 (1972), there were relatively few U.S. Supreme Court challenges to the constitutionality of capital punishment, and none that dealt squarely with whether the death penalty violates the Eighth Amendment prohibition against cruel and unusual punishment. In Furman, however, the Court addressed this constitutional question and, in a series of five concurring opinions, held that the imposition of Georgia’s death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court so held because juries in Georgia (like those in many other states) had virtually total discretion in deciding whether to impose death sentences. As Justice Douglas stated in his opinion, "We deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws, no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of twelve."

In response to this ruling, many states revised their death penalty statutes in an attempt to end the arbitrary decision-making rejected by the Court. These changes ranged from stipulating aggravating factors that must be found in a case before a death sentence can be imposed (Georgia) to providing for mandatory death sentences for specified crimes (North Carolina).

Four years later, the Court held in Gregg v. Georgia, 428 U.S. 153 (1976), that Georgia’s revised death penalty law complied with the standards set forth in Furman and therefore passed constitutional muster. However, the Court struck down mandatory death sentencing schemes in two cases decided the same day as Gregg. See Woodson v. North Carolina, 428 U.S. 280 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976). Since then, death penalty laws and processes have survived repeated challenges on a variety of constitutional grounds.

Concerns About the Fairness and Accuracy of Death Penalty Grow

Serious concerns have persisted—indeed, they have grown—regarding capital jurisdictions’ ability to ensure fairness in the imposition of capital punishment from case to case. As early as 1979, the American Bar Association adopted a policy calling for improvements in the competency of counsel in capital cases. In 1982, the ABA approved a second policy calling for preservation, enhancement, and streamlining of state and federal courts’ authority and responsibility to exercise independent judgment on the merits of constitutional claims in state post-conviction and federal habeas corpus proceedings. A year later, the ABA adopted a policy opposing the execution of offenders who were under the age of 18 at the time they committed capital offenses, and in 1989, it adopted a policy opposing the execution of mentally retarded offenders. In 1988, the ABA called for the elimination of racial discrimination in capital sentencing on the basis of either the victim’s or the defendant’s race. A complete listing of ABA policies related to the administration of the death penalty is available here.

However, in an era of "tough on crime" policies and rising prison populations, few jurisdictions moved to adopt the principles set out in those ABA policies. Instead, death rows grew through the 1990s and jurisdictions sharply constrained inmates’ ability to challenge the process through which they were convicted and sentenced to death or the sentence imposed in their particular case. In the summer of 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act, which appeared virtually to eliminate meaningful habeas corpus review in federal courts. At the same time, Congress de-funded state resource centers that provided numerous capital defendants with effective post-conviction counsel.

The ABA Calls for a Suspension of Executions

On February 3, 1997, the ABA therefore took action that it hoped would focus more attention on systemic problems and lack of fairness in the application of the death penalty in the United States. While taking no position on the death penalty per se, the ABA adopted a resolution initiated by the Section of Individual Rights and Responsibilities that urges a suspension of executions until concerns about capital punishment in the U.S. are addressed. Specifically, the resolution calls for capital jurisdictions to impose a moratorium on all executions until they can (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed.

Since the resolution’s adoption, discussion and debate of the issues it addresses have grown substantially. The Individual Rights Section issued three reports on these developments, including Toward Greater Awareness: The American Bar Association Call for a Moratorium on Executions Gains Ground (August 2001). The Section also has developed a publication entitled, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, to serve as "Protocols" for jurisdictions undertaking reviews of death penalty-related laws and processes.

This work, and that of many other national, state, and local groups addressing death penalty issues, has prompted growing media coverage and analysis of capital case concerns and has made the public much more aware of and informed about problems in death penalty administration. The public also is much more likely than it was in 1997 to support a suspension of executions while problems are corrected. For example, a poll conducted in 2011 among likely voters in Kentucky showed that an overwhelming majority would support a halt in executions.

The ABA Creates the Death Penalty Due Process Review Project

In the fall of 2001, the ABA established the Death Penalty Due Process Review (originally titled the Death Penalty Moratorium Implementation Project), housed within the Section of Individual Rights and Responsibilities, to conduct research and educate the public and decision-makers on the operation of capital jurisdictions’ death penalty laws and processes in order to promote fairness and accuracy in death penalty systems, both in the United States and abroad. The Project encourages legislatures, courts, administrative bodies, and state and local bar associations to adopt the ABA’s Protocols on the Fair Administration of the Death Penalty; provides technical assistance to state, federal, international, and foreign stakeholders on death penalty issues; and collaborates with other individuals and organizations to develop new initiatives to support reform of death penalty processes, including adoption of the ABA’s 1997 resolution promoting a suspension of executions.

For almost a decade, the Project has also rigorously examines state death penalty laws and processes, known as our “State Assessments,” to determine the extent of states’ abilities to ensure fairness and accuracy in all capital cases. Using ABA policies as the benchmark, the Assessments are an innovative tool that provide never before available data on the unfairness, disparity, and error in death penalty systems. The Project has recruited local, highly-regarded legal experts from diverse backgrounds in assessed states to undertake this detailed review of their jurisdiction’s death penalty, known as an “Assessment Team.” The State Assessments have twice been funded through a grant from EIDHR.

The Project operates with a Steering Committee comprised of death penalty law and policy experts and a full-time Project Director.

Our Success

Due to our success in developing the assessments, there is huge demand for our expertise. In the years preceding the founding of the Project, many jurisdictions possessed only anecdotal data about the functioning of their death penalty systems. The Project is now a singular place to find exhaustive research on important legal procedures, as well as factual data on the practical functioning of the death penalty through interviews and surveys of actors in the system. By end of 2013, after seven years of in-depth research and analysis, the Project will house comprehensive data on the operation of the death penalty in states that represent 65% of the executions that have taken place in the U.S. in the modern death penalty era, including Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee, Texas, and Virginia.

Due to increased calls for assistance from stakeholders across the country, the Project is also focused on implementation of the numerous reforms called for both by the ABA and the Assessment Teams. This is the most important phase of our work in death penalty jurisdictions—and is unique within the ABA as we focus on implementation of over three decades’ worth of ABA policy. State legislatures and state supreme courts have sought the Project’s assistance in creation of positive legislative and judicial reforms in capital cases. State agencies have looked to the Project in development of new rules and regulations relevant to death penalty cases (from arrest through execution). The Project prepares state assessment team members to serve as new allies on death penalty reform and moratorium issues on the state and local level. Counsel have relied on the Project’s data and recommendations in representation of their clients. And the Project’s promotion of ABA polices and best practices relative to capital cases, and its on-going analysis of state practices in light of ABA policy, continues to help many organizations prepare for the judicial and legislative battles ahead.

Trial courts, federal courts– even the U.S. Supreme Court– have cited the Project’s findings on the operation of state death penalty systems. Media interest and coverage of the project’s work in assessed states has also proliferated. The Project’s State Assessments have been and continue to be of significant interest to the press.