April 21, 2020

Frequently Asked Questions

Frequently Asked Questions

Below you will find a list of frequently asked questions about the death penalty and about a moratorium on capital punishment. These questions and answers cover issues relating to American Bar Association policy, as well as death penalty law in general.

Questions Regarding a Moratorium

Questions Regarding the Death Penalty and Its Fair Imposition

What is the ABA position on the death penalty?
The ABA has no position on the death penalty per se, but opposes the imposition of capital punishment on mentally retarded offenders and on offenders who were under age 18 at the time they committed capital offenses.

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Why did the ABA adopt the moratorium resolution?
For the ABA, the question is not whether, as a matter of morality, philosophy, or penological theory, there should be a death penalty. But it has concluded that each jurisdiction that imposes the death penalty has a duty to determine whether the system under which the penalty is imposed and carried out is flawed and, if so, to eliminate the flaws. The ABA’s moratorium resolution is one of the ways the ABA has chosen to encourage such examination and correction of problems.

The available studies, newspaper and magazine articles, case law, and first-hand reports that have considered the legal landscape of death penalty issues led the ABA to conclude that too many defendants in capital cases are not receiving the fundamental fairness due to them. The ABA has identified eight main areas of concern: defense services, procedural restrictions, clemency, jury instruction, judicial independence, racial discrimination, and the sentencing of juveniles and mentally retarded or mentally ill defendants in capital cases.

The adequacy of legal representation for those charged with capital crimes is a major concern. Many death penalty states have no working public defender systems, and many simply assign lawyers at random from a general list. A defendant’s life often is entrusted to an underqualified or overburdened lawyer who may have no experience with criminal law at all, let alone with death penalty cases.

The U. S. Supreme Court and the Congress have restricted greatly the ability of federal courts to rule on the merits of petitions of death row inmates who present substantial evidence that states have imposed their death sentences in violation of the Constitution.

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Didn’t the U. S. Supreme Court conclude that the death penalty is constitutional? If so, why is the ABA calling for a moratorium?
The United States Supreme Court upheld new death penalty statutes in 1976 in Gregg v. Georgia, 428 U.S. 153, after having invalidated earlier death penalty statutes in 1972 in Furman v. Georgia, 408 U.S. 238. In Furman, the Court concluded that then-existing state statutes failed to properly balance the need to ensure overall consistency in capital sentencing with the need to ensure fairness in individual cases. The Court found that the application of the death penalty was arbitrary and irrational, and several justices expressed the view that race appeared to be the single factor that distinguished those who were selected for capital punishment from those who were not. Four years later, in Gregg, the Court decided that new state statutes’ special procedural requirements for capital prosecution provided a means by which the states could achieve the appropriate balance.

In the quarter century since then, however, the promise has not been born out by the facts. The ABA and others have conducted studies of the state and federal systems of capital punishment, and the ABA, in particular, has made numerous, detailed recommendations to legislatures and courts intended to help ensure, among other things, that persons facing capital punishment receive competent, adequately funded counsel, that trials and appellate review are fair and thorough, and that racial discrimination ceases to be a factor in the application of the death penalty.

Today, however, it is apparent that the efforts to forge a fair capital punishment jurisprudence have failed. The ABA has found that the administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency. To a substantial extent, this situation has developed because death penalty jurisdictions generally have failed to implement the types of changes called for by existing ABA policies.

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Aren’t moratorium supporters primarily death penalty opponents?
It is true that many death penalty opponents also support a moratorium. But that is only part of the story. Polls show that two-thirds of Americans, including 60 percent of those in favor of capital punishment, support a death penalty moratorium until the death penalty is imposed fairly.

Among government leaders, there is increasing and bipartisan support for a moratorium. Former Governor George Ryan of Illinois, a Republican who supports the death penalty, became the first governor to impose a moratorium on capital punishment when he did so in his state in January 2000. Former Governor Parris Glendening of Maryland, a Democrat who supports the death penalty, became the second governor to impose a moratorium on executions when he did so in his state in May 2002.

Many Democrats and Republicans in both Houses of Congress support either a moratorium or significant changes to death penalty procedures. Well known conservative voices like Pat Robertson are among those who have also expressed their support for a moratorium.

Death penalty proponents and opponents who support a moratorium share a growing awareness that the death penalty simply is not being applied and carried out fairly and impartially. They also share a concern that, as former-Governor Ryan recognized in Illinois, many innocent persons have been sent to death row.

And as discussed earlier, the ABA takes no position on the death penalty per se and does not call for its abolition. The ABA’s death penalty work remains focused on improving laws and processes and promoting a moratorium until fairness is ensured for all capital cases.

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Are there any state moratoriums in place?
As of July 2015, Colorado, Pennsylvania, Oregon and Washington all have moratoriums in place. In 2013, Governor Hickenlooper of Colorado indefinitely stayed an execution, a decision which has been interpreted to apply to all executions as long as Hickenlooper is in office.  Washington State and Oregon’s governors suspended all executions for the remainder of their terms.  Pennsylvania Governor Wolf declared a moratorium on executions in February 2015 until a state-legislature mandated study on Pennsylvania’s death penalty procedures is completed and reviewed.

California, Kentucky, and North Carolina have de facto moratoriums in place while courts review the states’ lethal injection drug protocols.

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In working toward a moratorium on the death penalty, how does the ABA take into account the views of families of victims?
The ABA of course is very concerned about the impact of capital crimes on families of victims, and recognizes that families of murder victims suffer most acutely through the capital punishment process. In fact, the ABA has strongly endorsed legislation to address the needs of victims of violence. But ensuring fairness in capital cases also is in everyone’s interest, including families of victims.

As jurisdictions evaluate whether capital punishment is imposed fairly, they will be providing a service that is critical not only to defendants, but also to victims and their families and the general public. Neither the states nor the victims’ families gains any benefit from errors in the system that result in punishment of the wrong person while the actual offender goes unpunished and is free to commit additional crimes. We all are victimized when the wrong person is punished or defendants must be re-tried because of egregious errors in the original proceedings or unlawful conduct in an investigation. By helping ensure that process is fair from the beginning, we can avoid prolonging proceedings because the system has miscarried and mistakes must be corrected.

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Why should there be a moratorium on capital punishment for those who commit the worst crimes?
A moratorium on executions is necessary because the system by which convictions and death sentences are handed down is so badly flawed in many states that we currently cannot have confidence in the outcomes of the trials or review processes, even for the most heinous of capital offenses. When the trial is conducted fairly and the accused is represented by a lawyer who properly prepares and presents mitigating evidence at the penalty phase, jurors have the information necessary to decide whether to impose a death sentence or to impose, for example, a sentence of life without parole, depending upon the circumstances of the case. It is important to note that numerous people who spent many years on death row, in some instances coming very close to being executed, were found to be innocent long after their trials.

As of September 15, 2008, 130 people in 26 states have been released from death row because of evidence of their innocence. In some cases, the crimes of which the individuals were convicted were especially horrible, a fact that may have contributed to erroneous convictions. And in many of these cases, the errors were discovered not by the justice system, but by journalists and law clinics. We cannot continue to execute persons knowing that some may be innocent. We need to fix the system so that cannot happen.

Moreover, the fact that a crime is particularly egregious does not necessarily mean that the defendant, although guilty, will be sentenced to death. Numerous examples, such as the “Hillside Strangler” case, show that life without parole may be the verdict instead. Accordingly, ensuring a properly conducted capital sentencing proceeding, with effective advocates on both sides, is also vital.

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What are state and local bar associations doing to support a death penalty moratorium?

Over twenty state and local bars have adopted policies similar in effect to the ABA’s moratorium policy. Among them are the bar associations of: Arizona Minority Bar Association, Atlanta, Boston, California, Colorado, Connecticut, Charlottesville-Albermarle County (Virginia), Cook County (Illinois), Cuyahoga County (Ohio), Duke University (North Carolina), Harrisonburg/Rockingham County (Pennsylvania), Illinois, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Pennsylvania, Philadelphia, Puerto Rico, and Warren County (Virginia).

The Supreme Court of Ohio and the Ohio State Bar Association created a joint task force with a project similar to the ABA Assessments. The final report, dated April 15, 2014, acknowledged the ABA’s call for a moratorium but also provided that ABA Assessment Team members were not required to support a moratorium. The Washington State Bar Association passed a resolution calling for a study of the death penalty. The Colorado Bar Association’s resolution calling for a moratorium calls on the state government to implement ABA recommendations before reinstituting the death penalty.

In addition, other legal groups, such as the National Legal Aid and Defender Association, have joined in the moratorium call.

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Doesn’t the U. S. Supreme Court’s 1990 decision in Keller v. State Bar of California, 496 U.S. 1 (1990), prevent bar associations from adopting policy on a death penalty moratorium?
The Supreme Court in Keller held that the First Amendment prohibits bar associations with mandatory membership from using a member’s dues to fund political or ideological activities with which the member disagrees. The Court also said, however, that a unified bar could engage in activities germane to regulating the legal profession and to improving the quality of legal services. Several unified bars have interpreted Keller as allowing for passage of resolutions dealing with the issues raised in the ABA’s 1997 moratorium resolution. For example, the Louisiana State Bar Association has passed a moratorium resolution and the Washington State Bar Association has passed a resolution calling for a comprehensive study of the state’s death penalty systems.

A bar’s moratorium resolution squarely addresses the need to improve the quality of legal services in capital cases. A moratorium permits bars to work to ensure that each jurisdiction that employs capital punishment has procedures in place for providing competent legal services at all stages of the proceedings and guaranteeing that defendants are treated fairly, are not subject to discrimination, and receive due process of law. Nothing is more basic to the proper administration of justice than to ensure that anyone charged with capital crimes is treated with fundamental fairness and enjoys equal protection of the law.

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Questions Regarding the Death Penalty and Its Fair Imposition

How many jurisdictions have the death penalty?
As of May 2015, 31 states, the federal government, and the U.S. military retain the death penalty. The states are: Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.

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How many people are awaiting execution on death row?
As of January 2015, there were over 3,000 individuals on state and federal death rows.

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What is the current law on the execution of offenders who were juveniles at the time of their offense?
On May 1, 2005, the U.S. Supreme Court held, in Roper V. Simmons, that the Eighth & Fourteenth Amendments prohibit the execution of juvenile offenders who are under the age of 18 at the time they committed a capital offense.

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What is the current law regarding execution of offenders with intellectual disabilities?
On June 20, 2002, the U. S. Supreme Court held 6-3 in Atkins v. Virginia (01-8451) that the execution of offenders with mental retardation who have been convicted of capital crimes constitutes cruel and unusual punishment in violation of the Eighth Amendment of the U. S. Constitution. In so ruling, the Court overturned its 1989 decision in Penry v. Lynaugh, 492 U. S. 302, holding that use of the death penalty in such cases did not constitute cruel and unusual punishment under the “evolving standards of decency” standard applicable in Eighth Amendment cases. A key factor in the Court’s action was that, in 1989, only the states of Maryland and Georgia banned execution of mentally retarded offenders, while as of 2002, 18 states prohibit execution of the mentally retarded, another 12 states prohibited the death penalty in all circumstances, and two state legislatures had passed bills that, had they not been vetoed by the states’ governors, would have become laws barring such executions.

In the majority opinion, Justice Stevens stated that the “dramatic shift in the state legislative landscape provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.” Justice Stevens downplayed the use of specific numbers, however, and explained, “It is not so much the number of these states that is significant, but the consistency of the direction of the change.” Noting that most states that do allow for the execution of mentally retarded inmates were not actually carrying out these executions, Stevens concluded, “The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.”

The Court chose not to set a definition of mental retardation, leaving that determination for each state.

The Atkins decision does not mean that mentally retarded offenders will not be executed since many states must still determine what constitutes mental retardation and how the issue will be determined.

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Are capital cases handled differently than other criminal cases?
Because they involve a life-or-death determination, capital cases are unique in our criminal justice system. As the U. S. Supreme Court has said, "death is different." The laws and judicial decisions that govern this highly specialized area of law make it clear that death penalty cases are far more demanding, complex, costly, and, of necessity, protracted, than other criminal cases. In order to defend a case effectively, defense counsel must invest hundreds of hours in preparation, hire investigators and experts such as mental health professionals and forensic scientists, and have a thorough knowledge of the highly specialized body of death penalty law. Capital cases actually involve two separate proceedings: one to determine whether the accused is guilty of the charged capital offense and a second, known as the sentencing or penalty phase, to determine punishment. In most state and all federal courts, a jury hears both phases of the case trial. In some states, the jury’s penalty verdict is not binding on the trial judge; in others, sentencing is determined solely by the jury.

At the sentencing phase of a capital trial, the prosecutor is permitted to present what are known as aggravating circumstances, that is, evidence about the offense or the defendant and his background, such as prior criminal conduct, to argue in favor of a verdict of death. Evidence may concern the impact of the crime on members of the victim’s family or of the defendant’s potential dangerousness even if he is sentenced to life in prison. The defense then presents circumstances in mitigation, that is, evidence supporting a decision to impose a sentence other than death. (In all but a few states, there are only two sentencing choices in capital cases, life without possibility of parole or death). The U. S. Supreme Court has ruled that the decision-maker must be able to consider any relevant information regarding the defendant’s character or background or the circumstances of the offense that mitigate against the imposition of the death penalty. The scope of potential mitigating evidence and its importance in the sentencing decision requires that defense counsel engage in an exhaustive life history investigation with the assistance of a multi-disciplinary team of professionals. When undertaken with the requisite degree of thoroughness, this examination of the client and his family history – often the key to providing the decision-maker with an understanding of why the crime occurred – is demanding and costly.

Many of the legal issues involved in death penalty cases, and in particular the constitutional doctrines, are unique to these cases. Competent representation at the different stages of a capital case – trial, appeal, and post-conviction review – requires specialized training, significant experience, and intense preparation. Failure to understand the intricacies of the law, even at trial, can lead to errors that may be fatal to the client. It is of grave concern to the American Bar Association that the federal and state courts and legislatures have construed existing laws and enacted new legislation in ways that significantly curtail the availability of state and federal habeas corpus review to death row inmates, even when they have been convicted or sentenced to death as a result of serious, prejudicial constitutional violations. These changes have added layers of complexity to capital representation. In addition, in 1995, Congress withdrew all federal funding from the Post-Conviction Defender Organizations that have handled many post-conviction cases and that have mentored many other lawyers who have represented death row inmates in such proceedings. Together, these developments have exacerbated the national shortage of qualified lawyers for individuals facing the death penalty.

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If everyone who is accused of a crime has the right to a lawyer, why isn’t that enough protection for the accused?
The U. S. Supreme Court long ago decided that anyone who is too poor to retain a lawyer and faces prosecution for a crime that could result in a jail or prison sentence is entitled to appointed counsel at trial and at the first appeal as of right. The Court has also ruled that the right to counsel includes the right to a competent lawyer. But there is no federal constitutional right to post-conviction counsel in the federal courts or in the states. Clearly, not all lawyers are qualified to handle the exceptional challenges involved in defending a capital case. As Steve Bright, Director of the Southern Center for Human Rights, explained, " There are some outstanding lawyers who will occasionally take a capital case, but they find those cases drain them emotionally and financially. In states where there are hundreds of capital cases pending at any one time, there are not nearly enough good lawyers willing to take the cases for the small amount of money paid to defend them. And there are conscientious lawyers who, although lacking experience, training and resources, attempt to do the best they can in defending people in capital cases. But again, those lawyers represent only a small percentage of those facing death in states where scores of capital cases are pending trial at one time."

ABA studies have shown that in many death penalty cases, courts appoint lawyers who lack the special skills and resources needed to handle these cases properly. Thus, we have seen attorneys who have never before handled any criminal cases trying the most difficult kind of case of all. Unfortunately, there are also lawyers who make it obvious to the jury that they have no belief in their clients, lawyers who fall asleep during trial, lawyers who do not prepare properly, and lawyers who are routinely denied the necessary funds to investigate the case. The right to effective assistance of counsel should mean more than the right to a warm body at the counsel table. Yet courts rarely have found lawyers in capital cases to be "ineffective counsel," in violation of a defendant’s constitutional guarantees, even in these types of circumstances. The ABA, through its policies, recommendations, and amicus curiae (friend of the court) briefs has urged that legislatures and courts should adopt and enforce standards that set the bar of performance sufficiently high to ensure that each individual who faces the death penalty is represented by a qualified and vigorous advocate.

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Don’t the years of appeals before someone is put to death guarantee that the system is fair?
Unfortunately, no. Many individuals whose convictions or death sentences may violate the Constitution often cannot raise these issues in their appeals under existing strict standards of review even though these violations may well have affected the outcome. For example, a convicted person may not be able to raise an issue because of rules governing 1) procedural default, under which a person can lose a claim because of his lawyer’s negligent failure to raise it; 2) retroactivity, under which he can lose a claim because the U. S. Supreme Court had not recognized it as valid the first time he raised it, although it did later, and 3) a deference standard, under which a federal court may be barred from granting relief, even if it concludes that the state court erred in denying relief, unless the lower court was "unreasonably" wrong. Although a majority of states now provide counsel to death row inmates seeking post-conviction review of their convictions and sentences, very few states have standards that meet ABA guidelines for quality of representation, compensation, or funding for experts and the like. Moreover, several years ago the Congress eliminated the offices that provided expert advice and assistance to volunteer and appointed lawyers who represented death sentenced inmates.

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Why should public funds pay for qualified counsel for capital defendants? Why doesn’t the ABA solve the problem of lack of competent counsel on its own?
The law entitles an indigent capital defendant the right to a lawyer who is competent to represent him or her. The U. S. Supreme Court requires that governments provide effective legal representation for all indigent persons in criminal cases. As Chief Rehnquist explained in Wainwright v. Sykes, 433 U. S. 72 (1977), the trial is the “main event.” And, again, years of study by the ABA have demonstrated repeated failure by legislatures and courts to enforce this fundamental constitutional right.

As a voluntary membership organization, the ABA does not have the power to compel the appointment of competent counsel or to guarantee that they are paid adequately. What the ABA can do, and has done, is advocate vigorously for the right to qualified representation at all stages of a capital case, appointment standards, reasonable compensation and funding for the necessary costs of defending a death penalty case. Through its Death Penalty Representation Project, the ABA has also worked hard to recruit members to take on the post-conviction representation of indigent death row inmates.

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The U. S. Supreme Court has ruled on the question of race discrimination in the imposition of the death penalty. Does this ruling mean that discrimination isn’t a real problem?
No. The Supreme Court held in McCleskey v. Kemp, 481 U. S. 279 (1987), that even if a defendant can show that racial prejudice plays a systemic role in capital sentencing in his state, the race discrimination does not violate the Constitution unless the defendant can prove that the state legislature or a decisionmaker in his case acted with a discriminatory purpose. The Supreme Court added that if legislative bodies perceive there to be a problem and wish to pass statutes to deal with it, they are free to do so. Kentucky has enacted a law under which proof of significant racial discrimination requires the prosecutor to demonstrate a non-race-based explanation for seeking the death sentence.

An important further indication that such legislation is needed is a 1990 General Accounting Office review of studies on this issue that concluded that widespread racial discrimination exists in the imposition of capital punishment. All other factors being equal, the odds of an offender receiving the death penalty are much greater if the victim was white than if the victim was black. More recent regional and local studies, as well as the 2000 Department of Justice survey, confirm that race continues to play an impermissible role in the administration of the death penalty.

In addition, one of the main reasons former-Governor Glendening instituted the Maryland moratorium on executions was concern about racial bias in Maryland’s death penalty system.

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Have individuals ever been sentenced to death for crimes they did not commit?
Since 1973, 154 people have been released from death row with strong evidence of their innocence. The most recent exoneration occurred on June 8, 2015. These defendants spent an average of nearly eight years on death row before their eventual release. In Illinois, former-Governor George Ryan (R) announced a moratorium on executions in January of 2000, after 13 men were freed from death row who had been wrongfully convicted. In December 2000, DNA testing cleared a death row inmate in Florida; however, after spending 14 years on death row, the exonerated man had already died of cancer in prison. That same month, two men had their murder convictions overturned and dismissed after spending more than a decade on Louisiana’s death row.

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Isn’t the fact that innocent people are discovered before they are executed a sign that the system does work?
That might be true if the discoveries and results were due to the workings of the legal system. In a number of cases, they are not. In Illinois, for example, journalism students at Northwestern University have been instrumental in effecting the release of many of the innocents on that state’s death row.

As The Washington Post noted in an editorial about innocent people freed from death row, "there are undoubtedly others, already executed or awaiting the hangman, who are victims of mistakes that will never be proven or acknowledged."

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Does the ABA support DNA testing to reduce the chances that innocent individuals will be sent to death row?
Yes. The prospect that innocent people might be sent to death row is deplorable. We need to make sure that fairness is the rule at every level of the justice system, and particularly when human life is at stake. The American system of justice holds as its hallmark the protection of the innocent.

At its 2000 Annual Meeting in July, the ABA House of Delegates approved a recommendation supporting the use of DNA testing, and making it available to defendants upon request. DNA evidence has proven to be an effective tool to improve the reliability of the criminal justice system, and even to reveal errors of the past. Any such tool that can be used to identify criminals, and also to exonerate the wrongfully convicted, should be employed to ensure that our justice system works fairly, and without bias or error.

It should be noted, however, that DNA is not available in many capital cases. While DNA is an effective tool when available, it does not substitute for a full investigation, trial standards, adequate representation, and other elements that ensure fairness and due process for every individual charged with a capital offense.

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If DNA testing has been so instrumental in exonerating several death row inmates, why don’t all states allow it?
It is true that there have been more than 100 post-conviction DNA exonerations in the United States, including eleven people on death row. But under current state and federal law, it is difficult to obtain post-conviction DNA testing – and new trials based on the results of such testing – because of strict time limits on introducing newly discovered evidence. In many instances the biological evidence has been either lost or destroyed.

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Even if the systems in the states have problems, doesn’t everyone agree that the federal capital punishment system is fair?
No. Serious questions also have been raised about the fairness of the administration of the federal capital punishment system. On September, 12, 2000, the Department of Justice (DOJ) released a study of the federal death penalty that suggests the system is plagued by geographic disparities and ethnic bias. Fourteen of the 21 prisoners on federal death row at that time were from just three states – Texas, Virginia, and Missouri. The study also shows that prosecutors seek the death penalty much more often for Hispanic and African-American defendants. As of January 2002, 20 of the 24 prisoners on federal death row were African-American, Latino/a, or Asian. The ABA’s 1997 moratorium resolution applies to the federal government. Indeed, ABA Presidents have called upon the President of the United States to impose a moratorium on executions.

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