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April 01, 2007

ABA State Death Penalty Assessments: Facts (Un)Discovered, Progress (to Be) Made, and Lessons Learned

by Deborah Fleischaker

Fairness and accuracy together form the foundation of the American criminal justice system. As the U.S. Supreme Court has recognized repeatedly, these goals are particularly important in cases in which the death penalty is sought. Our system cannot claim to provide due process or protect the innocent unless it provides a fair and accurate system for every person who faces the death penalty.

In February 2003, the American Bar Association (ABA) Death Penalty Moratorium Implementation Project, which was established in 2001, decided to assist a number of the capital jurisdictions that have not yet conducted comprehensive examinations of their death penalty systems by examining those systems and preliminarily determining the extent to which they achieve fairness and provide due process. These ABA assessments are not designed to replace comprehensive state-funded studies but instead are intended to highlight individual states’ successes and inadequacies.

All of the assessments use as a bench­mark the protocols set out in the ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States. These protocols are not intended to exhaustively cover all aspects of the death penalty. They do address seven key aspects of death penalty administration: defense services, procedural restrictions and limitations on state postconviction and federal habeas corpus proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic minorities, and mental retardation and mental illness. Additionally, the moratorium project added five new areas to be reviewed as part of the assessments: preservation and testing of DNA evidence, identification and interrogation procedures, crime laboratories and medical examiners, prosecutors, and the direct appeal process.

Each assessment is conducted by a state-based assessment team. The teams are comprised of or have access to current or former judges, state legislators, current or former prosecutors, current or former defense attorneys, active state bar association leaders, and law school professors. Team members are not required to support or oppose the death penalty or a moratorium on executions.

Each team’s findings provide information on how state death penalty systems are functioning in design and practice and are intended to serve as the basis from which states can launch comprehensive self-examinations. Because capital punishment is the law in each of the assessment states, and because the ABA has no position on the death penalty per se, the teams focus exclusively on capital punishment laws and processes and do not consider whether states, as a matter of morality, philosophy, or penological theory, should have the death penalty.

At the time this article was drafted, the moratorium project had released state assessments in Alabama, Arizona, Florida, Indiana, Georgia, and Tennessee, with plans to release additional assessments in Ohio and Pennsylvania. Over the course of conducting these assessments, the ABA has learned an enormous amount about death penalty systems and has taken significant strides in continuing and advancing the death penalty discussion. At the same time, the ABA had hoped to investigate a number of issues but could not; much progress re­mains to be made. This article discusses these issues, focusing on what the ABA has learned over the course of assessing state systems, what it has yet to learn, what it has accomplished, and what it has yet to accomplish.

What We Have Discovered

Over the course of the past thirty years, the ABA has become increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy in the administration of the death penalty. The state death penalty assessments conducted by the ABA confirm that it was right to worry. After releasing six reports, it is beyond dispute that each system studied has serious problems that call into question its fairness and accuracy. While the scope and detail of the problems differ among states, the ABA has discovered some disturbingly universal issues.

Poor defense lawyering. The quality of defense representation is problematic in every state studied by the ABA, leaving no doubt that states are failing to ensure that all—or even most—capital defendants receive qualified lawyers at trial, on appeal, and through state postconviction proceedings. Some states, like Georgia and Alabama, fail even to provide the most basic of protections by appointing death row inmates counsel in state postconviction proceedings. This failure to appoint counsel can have lethal repercussions, with some death row inmates missing filing deadlines and waiving legitimate issues on appeal. Ultimately, this can result in the frightening situation in which a death row inmate is executed without a court ever hearing evidence of serious constitutional claims of error.

Even in states that do appoint counsel in state postconviction proceedings, serious problems persist. For example, district public defender offices in Tennessee are burdened by some of the highest case­loads in the country and presently are short a shocking 123 attorneys. The Office of the Post-Conviction Defender in Tennessee is said to be on the verge of collapse due to an excessive caseload, with five assistant postconviction defenders each handling an average of twelve to fourteen capital cases at any one time. Given that capital cases are some of the most difficult and time-consuming cases an attorney can handle, this sort of overwhelming caseload makes it difficult, if not impossible, to provide adequate representation.

Furthermore, the oversight of capital defense attorneys, generally achieved through qualification and monitoring standards, often is woefully inadequate. Registry attorneys in Florida need only minimal experience to qualify for appointment and do not receive adequate monitoring once they have been appointed. These shortcomings have not gone unnoticed. In fact, Florida legislators and supreme court justices have criticized the performance of registry attorneys on a number of occasions, including Florida Supreme Court Justice Raoul Cantero’s testimony that the representation provided by registry attorneys is “[s]ome of the worst lawyering” he has ever seen. Despite this, the state has done little to fix the problem.

Even in a state like Arizona, which commendably requires that lead trial counsel be familiar with the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, clear problems exist. Arizona’s failure to provide statewide oversight of its indigent defense system (with the exception of the state capital postconviction public defender office) leads to a system in which fairness and accuracy breakdowns are not only possible but likely. Despite the Arizona Capital Case Commission’s unanimous recognition that “establishing a statewide public defender office for capital cases would be the best and most effective way to improve death penalty trials in Arizona,” the state still does not vest the responsibility for training, selecting, and monitoring capital defense attorneys in one statewide independent appointing authority.

Racial bias. Over twenty years have elapsed since David Baldus and his team released the seminal study of racial bias and capital sentencing. In that study, which looked at Georgia homicides during the 1970s and 1980s, researchers found that the odds of receiving a death sentence were 4.3 times greater for those convicted of killing whites than those convicted of killing blacks.

Surprisingly little seems to have changed in the years since. In study after study, including those conducted by the ABA as part of its assessments, killers of white victims, whatever their race, are much more likely to be sentenced to death than those who kill blacks or Hispanics. For example, the ABA conducted a racial disparity study in Georgia and found that virtually the same level of bias exists today as when the Baldus study was released. Both the race of the defendant and the race of the victim remain accurate predictors of who is sentenced to death in Georgia, even after controlling for a great many variables, with the odds of white suspects and those who kill white victims being sentenced to death higher than the odds of black suspects and those who kill black victims. Specifically, the odds of being sentenced to death are 4.56 times greater for those suspected of killing whites as compared to those suspected of killing blacks.

Unfortunately, Georgia is not alone. In Indiana, the data showed that from 1981 to 2000 the odds were 5.8 times greater that persons who killed whites would receive a death sentence than those who killed blacks. Yet, as with poor defense lawyering, little has been done to try to eliminate the continuing impact of race in capital sentencing.

Lack of proportionality. Comparative proportionality review—the process through which a court compares a sentence of death with sentences imposed on similarly situated defendants to ensure that the sentence is not disproportionate—is the most effective method of protecting against arbitrariness in capital sentencing and ensuring that the death penalty is applied only to the “worst of the worst” offenses and offenders. Mean­ingful comparative proportionality review also provides a check on broad prosecutorial discretion and helps prevent discrimination from playing a role in the capital decision-making process.

In many cases, for example, similarly situated defendants who commit similar crimes are not sentenced to death. The type of proportionality reviews commonly conducted, however, would never consider this. Instead, an appellate court will often find proportionality when it can identify some cases—and sometimes only one case is considered necessary—that it can say is similar and where the sentence was death. This type of practice is a major reason why arbitrariness, capriciousness, and racial disparities are prevalent in capital cases.

To conduct comparative proportion­ality review effectively requires more than simply stating that a particular death sentence is proportional to the crime and the offender. Instead, proportionality review should, in addition to citing previous decisions, analyze their similarities and differences, and the appropriateness of the death sentence. In considering previous decisions, courts conducting proportionality review should include cases in which a death sentence was imposed, cases in which the death penalty was sought but not imposed, and cases in which the death penalty could have been sought but was not.

Yet, in state after state, comparative proportionality review is being conducted in a cursory and incomplete manner, if at all. For example, while the Indiana supreme court often conducts a thoughtful and searching review to ensure that similar, noncapital defendants who commit similar crimes are receiving similar sentences, it does not appear to do so in death penalty cases. In Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003), that court aptly acknowledged that “a respectable legal system attempts to impose similar sentences on perpetrators committing the same acts who have the same backgrounds.” Based on the state constitutional power to review and revise sentences and the state rule that provides for revision of inappropriate sentences when certain broad conditions are satisfied, the court reduces many sentences each year in noncapital cases. Yet, although the court claims to review every death sentence automatically and apply a higher level of scrutiny than in other criminal cases, its review of capital cases appears to be less searching and has resulted in very few reductions of death sentences.

In Tennessee, while the state supreme court and its court of criminal appeals are required to determine whether a death sentence “is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant,” the Tennessee supreme court has limited the courts’ duty to ensuring that “no aberrant death sentence is affirmed.” Accordingly, a death sentence will be found disproportionate only “if the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed.” So far, under this standard, the court has only found one death sentence to be disproportionate.

In Georgia, the supreme court is required to determine whether the defendant’s sentence of death is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” In conducting its proportionality review, that court limits its review to the few cases where the death penalty was imposed in similar circumstances. Additionally, the court generally explains its proportionality review by merely repeating the language of the statute, stating that “[t]he death sentence is not disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant. The similar cases listed in the Appendix support the imposition of the death penalty in this case.”

Most egregiously, Arizona no longer requires any sort of proportionality review. Before 1992, the state supreme court would determine whether a death sentence was “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” In 1992, however, it held that proportionality review was not mandated by statute or by the federal or state constitution. Since then, the court has rejected any argument that the absence of proportionality review denies capital defendants equal protection and due process of law, or that it is tantamount to cruel and unusual punishment.

What We Have Not Discovered

Central to assessing a state’s death penalty system is the ability to collect data about that system. Yet time and time again, the ABA could not reach any conclusions as to whether a state complied with its various recommendations because much of the necessary data had not been collected or maintained. Despite the fact that lives are on the line and that the adequacy of state judicial systems is at stake, states routinely fail to keep comprehensive, easily locatable, and searchable records of their death penalty systems and cases.

While the ABA was able to collect some of the information necessary to conduct its assessments, there were large areas that it wanted to explore but did not have the access, time, or money required to do so. The ABA encountered some of its most significant roadblocks in the following areas.

Basic statistics . As part of its assessments, the ABA intended to conduct basic race and/or geography studies in every assessment state. While difficult and time consuming, the ABA was able to collect the basic data necessary for these studies in five states: Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. It simply was too difficult to collect the requisite information in other states, however, including Alabama and Florida. All states must make this sort of data publicly available in order to develop a clearer picture of how state death penalty systems are working.

Prosecutors. While the ABA was successful in recruiting prosecutors to serve on several of the assessment teams, it had a great deal of trouble securing other prosecutorial participation in its data collection efforts. Because of this difficulty, it proved virtually impossible to determine how prosecutors make their charging decisions. In Florida, the team sent surveys to each of the twenty state attorneys but received only three back, none of which could articulate the method used to determine which cases would be charged capitally. Developing a clear sense of what is happening in prosecutor offices is impossible if prosecutors refuse to participate and/or have no set policies to disclose.

Clemency issues. The clemency process generally is shrouded in secrecy and governors often have absolute power to grant or deny clemency petitions. Because of this, standards often are lacking, and it is uncommonly difficult to determine how clemency decisions are made. While this opaqueness may be purposeful, it increases the risk of arbitrariness in the capital system.

Law enforcement. While information on law enforcement policies some­times is available, collecting it can be difficult and time consuming. Individual states can have hundreds of law enforcement agencies. If no statewide law or rule exists governing the way these agencies conduct their work, and if no one entity serves as a clearinghouse for this sort of information, it becomes difficult to assess how these agencies are working on a state­wide level. In addition, many law enforcement offices may not have any written standards governing law enforcement procedures. This makes it difficult to determine whether law enforcement offices are complying with various recommendations, including those about taping custodial interrogations and conducting sequential, double-blind lineups.

What We Have Accomplished

While the work of the assessment project continues, it already has accomplished much of what it set out to do. The assessments were designed to document how various components of a state’s death penalty system fit together. Before the assessment reports, most states did not have any one source for this information. Now, every state in which an assessment has been completed has a resource that can be used to learn how the state intends its death penalty system to work.

The assessments also were designed to identify and document problems found in individual state death penalty systems. Reasoned death penalty discussion requires state-specific facts. Yet while there is a great deal of information about the death penalty generally, and while a limited number of states have documented problems in their systems, many states have had to launch discussions of the death penalty without the benefit of state-specific facts. For the eight states considered in the ABA assessments, this no longer is a problem. The facts detailed in the assessment reports now can be used to inform the ongoing death penalty debate and, hopefully, point the way toward reform.

The assessments also have been successful in bringing “unusual suspects” into the death penalty reform and moratorium movement. This movement needs assistance from people who support the death penalty in principle but are concerned about how it works in practice. In organizing state-based assessment teams, the ABA recruited current and former prosecutors, judges, and state legislators, many of whom had never discussed publicly their concerns about the death penalty. In doing so, the ABA brought a notable number of people into the death penalty reform and moratorium movement who had not previously been working on this issue. For example, former Governor Joe Kernan agreed to serve on the Indiana assessment team. When we started the assessment process, he was enthusiastic about reforming the system as a result of his experiences with the death penalty while serving as governor, but he was a strong death penalty supporter and opposed to the idea of a moratorium on executions. By the end of the process, he was so concerned about what the team had learned that he publicly announced a promoratorium position, going so far as to state that “[w]e should not be in the position of executing anyone in Indiana until absolutely all doubts have been resolved.”

Lastly, central to transforming the assessment reports into reform and/or moratoriums is developing and nurturing contacts within the legislative, judicial, and executive branches of government. To establish these sorts of contacts, the ABA worked hard to present the assessments honestly and informationally, but not confrontationally. While the ABA has not developed contacts in every state where we have worked—in Georgia, for example, the governor’s spokesperson answered a press question about whether the governor would impose a moratorium with a dismissive “nope”—we have been successful in establishing contacts in a variety of states. We have met with decision makers—including legislators, governors, and judges—in a number of states where we conducted assessments. Furthermore, in the process of releasing the reports, the ABA often found new and unexpected allies. For example, Indiana State Senator Jeff Drozda, a Republican who sits on several committees that act upon death penalty issues, came out in the wake of the report’s release and stated that he supported a moratorium because “the integrity of our judicial system has been jeopardized.”

The Work That Remains

While the assessments have helped to shine an initial light on what appears to be eight woefully inadequate and highly arbitrary capital systems, much remains to be done before fairness and accuracy become the hallmark of death penalty administration. Not least of the remaining tasks is translating the assessment reports into lasting change. While the assessments provide the information that helps to create an atmosphere in which moratoriums, studies, and reforms can be implemented, this is an enormous challenge and means continuing to reach out to “unusual suspects,” developing the facts that demonstrate the injustice found in state death penalty systems, encouraging state and local bar associations to engage actively in their states’ death penalty debate in a way that most have resisted, engaging in public education so that the general public understands the problems inherent in state death penalty systems, and reassuring state legislators and governors that death penalty reform, study, and moratoriums are worth their time and energy. To repeat the time-worn cliche, we have only just begun.

Consistent Problems

Through the process of conducting assessments, the ABA has discovered that the overarching problems of poor defense lawyering, racial bias, lack of proportionality, and incomplete record keeping are consistent, regardless of jurisdiction. And because the ABA has assessed a critical number of death penalty states, one can reasonably extrapolate that the same problems are likely to exist in jurisdictions that were not assessed.

Ultimately, the problems found by the ABA go to the heart of the American justice system and, as currently practiced, the death penalty appears to be full of unfairness and inaccuracies. This is not to say that attempts have not been made to fix these problems. Over the years, some governors, judges, and legislators have tried. Yet, as U.S. Supreme Court Justice Harry Blackmun so eloquently stated, “The problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.” Unfortunately, on a systemic level, it does not appear that state death penalty systems have evolved in a meaningful way.

This lack of substantive movement is in direct contrast to the public’s view of the issue. Over the course of the past ten years, the public has come to hold a more nuanced view regarding the death penalty than many decision makers. As part of the assessments, the ABA conducted statewide surveys of registered voters in Tennessee and Indiana. And while, as expected, support for the death penalty was high, so too was support for moratoriums while the death penalty was studied, and problems identified and fixed. In fact, while 68 percent of the surveyed Tennessean voters support the death penalty, an astonishing 66 percent support a moratorium. The numbers in Indiana are much the same, with 68 percent of surveyed Indiana voters supporting the death penalty but 61 percent also supporting a moratorium. These numbers do not indicate a blind acceptance of the death penalty without consideration of its fairness and accuracy. Nonetheless, politicians, as a whole, are not yet reflecting the changing views of the people they were elected to represent.

Political courage by politicians has been sorely lacking on this issue. Too many politicians believe that general support for the death penalty must translate into a blind defense of all current death penalty policies (or support for even more regressive ones). What people must realize is that regardless of one’s feelings about the death penalty from a moral perspective, our systems are not living up to the standards that we as Americans hold dear, including fairness, equality, and proportionality.

The real purpose of the state assessments is not to simply document the problems that exist but to help instill the will to fix those problems. Unfortunately, too many would like to brush them under the table. Ultimately, our job is to help states understand that if they want to have a death penalty, they must reform them so that they work properly. Hopefully, the ABA’s years of work can serve as a resource in this process.

Deborah Fleischaker

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