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January 01, 2004

The Continuing Need for a Nationwide Moratorium on Executions

by Deborah T. Fleischaker

"A system that will take life must first give justice."
John J. Curtin Jr., president of the American Bar Association (ABA), speaking to a congressional committee in 1991

Thirteen years after Curtin's challenge and seven years after the ABA's adoption of a resolution calling for a nationwide moratorium on executions, his words have taken on renewed meaning throughout the country. Lawyers, policymakers, and advocates are admitting that the capital punishment system is indeed broken and that the best way to avoid the execution of the innocent is to impose a moratorium and remove the pressure created by impending executions.

Since the ABA adopted its resolution in 1997, two states have instituted moratoriums (one retracted), one has conducted a thorough investigation of its capital system, and many have implemented partial reforms. Eighteen states have banned the execution of mentally retarded offenders, and in 2002 the U.S. Supreme Court declared the practice unconstitutional in all states. Atkins v. Virginia, 536 U.S. 304 (2002). At least ninety-nine local jurisdictions; many dozens of organizations; and thirty-six national, state, local, and specialty bar associations have passed resolutions supporting moratoriums in their jurisdictions. Yet encouraging as these developments are, the need for a truly nationwide moratorium remains as urgent as ever.

Consider the case of Joseph Amrine, one of the 112 people sentenced to death since 1972 who subsequently were exonerated of their crimes. Convicted and sentenced to death in 1986 for the murder of a fellow prisoner, Amrine always maintained his innocence. No physical evidence ever linked him to the crime; he was convicted largely on the testimony of prison guards and fellow inmates, three of whom later recanted. In April 2003, seventeen years after he was sentenced to death, the Missouri Supreme Court ruled that he should be released due to the "lack of any remaining direct evidence of [his] guilt from the first trial" and "clear and convincing evidence of actual innocence." Amrine v. Roper, 102 S.W.3d 541, 548 (2003). Yet in arguments before the court, the state claimed that the evidence of innocence should have no bearing on the outcome of Amrine's legal appeal.

Does this case demonstrate, as moratorium critics suggest, that a nationwide moratorium is unnecessary because innocent people are not executed, and that the justice system corrects its errors? To the contrary, the Amrine case is only one of many recent illustrations of a system gone horribly wrong that continues to produce wrongful convictions and almost certainly wrongful executions. In many of the 112 exonerations, fortuitous circumstances-as opposed to the effective administration of the justice system-enabled lawyers, sometimes assisted by pro bono journalism students, to discover evidence that had been missed before.

Judicial reversals of death sentences are another indicator of the capital punishment system's ill health. A recent study by the Columbia University School of Law found in reviewing capital cases between 1973 and 1995 that courts overturned more than two-thirds of death sentences because of serious violations of state or federal constitutions. Like exonerations, reversals per se are not the problem. Terrible as these injustices are, an issue more important than whether we sentence innocents to death or whether a large majority of death sentences are overturned is why these wrongs occur in the first place.

The ABA, through the Death Penalty Moratorium Implementation Project and the Section of Individual Rights and Responsibilities, in 2001 called upon capital jurisdictions to examine their systems fully and fairly to determine why the innocent and undeserving are sentenced to die. The only reasonable way to do so is to put a temporary stop to executions in the interim to eliminate outward pressure on the system. This will give states the time they need to review their current practices and reach conclusions that can ensure that all problems have been addressed. Although each capital system is unique, all share in the reality of the following issues.

Counsel Competency

Most death row inmates undoubtedly have not received the quality legal representation that the finality of a death sentence demands. Quality of counsel, more than the circumstances of the offense or the record and history of the offender, frequently is the real determinant in who receives a death sentence.

Consider this frightening statistic from a recent study by the Common Sense Foundation: more than one in six North Carolina death row inmates were represented at trial by lawyers who had been disciplined by the North Carolina State Bar. Studies in Illinois, Tennessee, Texas, and Washington have revealed similar results, demonstrating that this is a fundamental problem of major proportion.

Even the U.S. Supreme Court has expressed concern about the quality of counsel in death penalty cases. Last term the Court held that a defense attorney's failure to investigate a capital defendant's background for mitigating evidence constitutes ineffective assistance of counsel. Wiggins v. Smith, 123 S. Ct. 2527 (2003). Wiggins is only one example; unfortunately, there are other instances in which counsel's ineffectiveness was even more egregious. Some of these cases led to executions. Justices Sandra Day O'Connor and Ruth Bader Ginsburg both have raised questions about counsel competency in other contexts as well; as Justice Ginsburg noted in an April 2001 speech, "People who are well represented at trial do not get the death penalty." The Court's ruling in Wiggins does not eliminate the problem of counsel competency, of course. Until all jurisdictions deal with the issue in a comprehensive manner, this problem will persist-and the clients will bear the burden of their attorneys' failure to represent them adequately.

Post-Conviction Barriers

Compounding the problem of inadequate counsel is the increasing unavailability of state post-conviction and federal habeas corpus relief through collateral review of state court judgments. Although collateral review long has been an integral and appropriate part of the capital punishment process, securing relief on meritorious federal constitutional claims is more difficult than ever.

One of the many reasons for this difficulty is the deference standard, under which the federal courts are barred from considering a claim where the state court, although wrong in denying relief, was not unreasonably wrong. This standard can apply to state court errors in the determination of constitutionality or harmlessness.

An example of the egregious harm produced in a capital case by the deference standard occurred in March 2002, when the Court of Appeals for the Fifth Circuit held that although the Mississippi Supreme Court should have granted the petitioner's ineffective assistance of counsel claim, the refusal to do so was not "unreasonable," and the appellate courts therefore could not grant relief. Neal v. Puckett, 286 F.3d 230 (5th Cir. 2002) ( en banc) ( per curium), cert. denied sub nom. Neal v. Epps, 123 S. Ct. 963 (2003).

Some death row inmates-approximately 40 percent, according to the latest data-do secure relief in post-conviction or federal habeas proceedings. This number might be significantly higher if federal courts were permitted to consider all death row inmates' claims on the merits. In addition, unreversed cases may represent statutory limitations or judicial attitudes, not proper prosecutions. The State of Virginia, for example, has a very low reversal rate due to a twenty-one-day rule barring the introduction of new evidence and a general reluctance on the part of state and federal courts to find constitutional error.

Are We Punishing Judges?

The concept of judicial independence presupposes that judges will decide cases without political or other bias and in the face of official or public opposition where necessary to protect applicable laws and the Constitution. But a judge working in a political environment must pay a price, personally and professionally, for making fair but unpopular decisions. The implications for capital punishment systems are severe.

Elections, appointments, and confirmations of judges increasingly are made in an arena where judicial nominees' or candidates' purported views on the death penalty are a major factor. In one clear example, former Mississippi Supreme Court Justice James L. Robertson lost his bid for reelection in 1992 after a campaign in which the death penalty was the primary issue. Among the decisions for which Robertson was attacked was a concurring opinion in which he wrote that the Constitution does not permit the death penalty for rape when there is no loss of life. The fact that this opinion was consistent with U.S. Supreme Court precedent holding that such a punishment would violate the Eighth Amendment was ignored.

The erosion of respect surrounding the need for judicial independence increases the possibility that judges will be selected, elevated, or retained in office by a process that ignores the larger interests of justice and fairness. Some judges may decide cases not on the application of the law but on the possible effects of their decisions on their careers. Those who do act independently may do so at the expense of their careers. Either way, the entire system suffers, eroding both the defendant's right to a fair trial and the public's confidence in the fair administration of justice.

Bias Continues

Numerous studies over the last ten years have found that race is one of the deciding factors in whether a capital defendant lives or dies. Most recently, a University of Maryland study concluded that defendants accused of killing white people are significantly more likely to be charged and sentenced at the capital level than defendants accused of killing non-whites. Other studies have shown that, in some jurisdictions, other factors being equal, African American defendants are more likely to receive the death penalty than are white defendants. Numerous studies also show that death is sought and imposed significantly more often when the murder victim is white. In countless cases in jurisdictions nationwide, the pattern of racial discrimination persists at least in part because courts often tolerate bias by prosecutors, defense lawyers, trial judges, and juries. This can infect the entire trial process.

There is little dispute about the need to eliminate race as a factor in the administration of the death penalty. But states have yet to address the reality of discrimination in the justice system generally and in the capital punishment system specifically.

Children Are Different

When the U.S. Supreme Court last considered the issue of juveniles and capital punishment in 1988, it held constitutional the execution of offenders who were sixteen or older at the time they committed capital offenses. Stanford v. Kentucky, 192 U.S. 361 (1988). Since that time, however, understanding has increased that juvenile offenders lack the judgment and security to clearly understand the consequences of their actions. Many are acting out, in part, the impact of terrible childhoods, and are more prone than adults to make false confessions or engage in other immature conduct that unfairly places them at greater risk of receiving the death penalty.

As of 2003, four members of the U.S. Supreme Court have indicated they oppose the execution of juveniles. In a 2002 dissent over denial of certiorari, Justice John Paul Stevens, joined by Justices David Souter, Ginsburg, and Stephen Breyer, stated, "The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice." Stanford v. Parker, 123 S. Ct. 472, 475 (2002). In August 2003 the Missouri Supreme Court went one step further; after acknowledging the U.S. Supreme Court's holding in Stanford, it held that the Eighth Amendment should be interpreted "in a flexible and dynamic manner" to ban juvenile executions because "in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders."

Despite increasing discomfort domestically and internationally with the juvenile death penalty, twenty-one states still permit the execution of juvenile offenders, and more than eighty juvenile offenders remain on death row.

The Less Culpable

In a major shift in constitutional law in 2002, the U.S. Supreme Court held that the execution of mentally retarded offenders violates the Constitution's Eighth Amendment ban against cruel and unusual punishment. Many people therefore assume that people with mental retardation no longer will be executed. Unfortunately, this conclusion is far from certain. The Court left it to the states to determine appropriate definitions and procedures to ensure that mentally retarded offenders are not subject to the death penalty. The lack or inconsistency of standards in most jurisdictions leaves mentally retarded offenders at risk for execution. In addition, the general lack of understanding of mental retardation by defense counsel, prosecutors, and judges, along with the lack of sufficient resources to investigate and develop mental retardation claims, leaves mentally retarded offenders at risk of execution.

Juries often consider mental illness, which should be treated as a mitigating factor in capital cases, as an aggravating factor instead. Compounding this misunderstanding of the law, states often fail to monitor or correct the unintended and unfair results of the error. Like mental retardation, a defendant's mental illness is a factor at every stage of a capital case. It is relevant to the defendant's competence to stand trial; may provide a defense to the murder charge; and can be the centerpiece of arguments in mitigation. Conversely, when the judge, prosecutor, and jurors are unfamiliar with the nature of mental illness and its relevance to a defendant's life experience and culpability, the likelihood of a death sentence looms larger.


In 1997 the ABA took the lead in urging all jurisdictions that authorize the death penalty to halt executions, take a hard look at death penalty implementation and review a growing body of evidence showing that the death penalty is administered unfairly. Today, that evidence is ample and incontrovertible.

Achieving accuracy and fairness in the capital punishment system is a goal that all fair-minded people should embrace, whatever their views on the merits of the death penalty. Our system cannot protect the innocent or provide due process unless it protects in a fair and nondiscriminatory way every single person who faces the death penalty. Until that time, a moratorium on executions is the only way to ensure that innocent people are not executed, to prevent executions of individuals with wrongful convictions or unfair death sentences, and to create an atmosphere that is conducive to full and objective analysis of systemic problems and remedies nationwide.

Deborah T. Fleischaker

Deborah T. Fleischaker is the director of the ABA Death Penalty Moratorium Implementation Project.