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April 01, 2007

Introduction: A Thirty-Year Retrospective of the Death Penalty

Stephen F. Hanlon

The death penalty, like baseball, is an American institution. And, like baseball, the death penalty is a deeply troubled institution. But, unlike baseball, it has been hopelessly mired in race, class, scandal, incredulity, inconsistency, and disgrace from its very beginnings—and this continues uninterrupted to the present moment. The death penalty has become a cancer on the American justice system.

This year marks the tenth anniversary of the American Bar Association’s (ABA) call for a moratorium on the death penalty, a call that we are proud to note originated in the Section of Individual Rights and Responsibilities (IRR). So this year is perhaps as good a time as any to take a serious look at the last thirty years since the U.S. Supreme Court reinstated the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). That is what we do in this issue of Human Rights. We are taking this opportunity to ask ourselves two important questions about this distinctly American—and conflicted—institution:

• What has been the role of our profession?

• What has been the role of the organized bar, particularly the ABA?

Our profession’s involvement in the capital punishment system in America has been both noble and abysmal. Its nobility is represented by a great generation of lawyers, led by the totally unselfish and indefatigable Anthony Amsterdam and
including other legends such as Bryan Stevenson, Stephen Bright, IRR’s own Ronald Tabak, George Kendall, Ruth Friedman, Mark Olive, Sandra Babcock—and many more, too numerous to mention—who, while heroically representing hundreds of death-sentenced clients, have exposed this institution for what it is. Or, as the Advancement Project’s Penda Hair once remarked, who have fulfilled the lawyer’s great duty to future generations to “make sure there is a record of what happened.”

On the other hand, the performance of the justice system—including policy makers, judges, and prosecutors, all seemingly determined to avoid rigorous scrutiny of the ultimate state sanction—has been abysmal, overlooking or even countenancing poorly funded and inadequately trained lawyers who have left a trail of egregious error, most of it uncorrected by the system. For further insight into these tragic results, see Sandy D’Alemberte’s contribution to this issue.

As to the performance of the organized bar, the ABA’s development of its guidelines regarding standards for counsel and policies regarding race, juveniles, and mental retardation; its call for a moratorium after the enactment of the 1996 Anti-Terrorism and Effective Death Penalty Act eviscerated habeas corpus and Congress simultaneously forced closure of the Death Penalty Resource Centers; its ongoing support for the Death Penalty Moratorium Implementation Project as a demonstration of long-term commitment to death penalty reform, and especially that project’s current and comprehensive assessment of eight states’ death penalty systems, have surely been some of this organization’s best moments.

Ronald Tabak, who chairs IRR’s death penalty committee, is now expanding the remarkable work he and others did on mental retardation to include other types of impaired mental conditions. Glenn Pierce and Michael Radelet report on extensive work documenting racial, geographic, and economic disparities in implementing death penalty processes. Sandra Babcock presents an overview of international developments on the death penalty, including the U.S. Supreme Court’s debate on whether to consider international norms in evaluating its fairness. Eddie Hicks, a member of the New Jersey Death Penalty Study Commission, depicts New Jersey’s inspiring effort to abolish the death penalty. Andrew Cohen, CBS News’s chief legal analyst, argues that the pendulum is swinging back, as executions are on hold in many states, other states are seriously examining their death penalty systems, and the number of death sentences is dropping dramatically.

What will an issue of Human Rights look like ten years from now when we do a similar retrospective? Deborah Fleischaker describes the eight states studied so far by the ABA moratorium project as having “woefully inadequate and highly arbitrary capital systems.” With the state assessments completed, future studies of the states’ performance with respect to the specific reforms called for in the assessments will undoubtedly occur. Will the states enact the reforms so clearly needed? If they do not, what implications will that have for ABA policy, the legal profession, and the justice system?

Stephen F. Hanlon

Stephen F. Hanlon, a partner with Holland & Knight LLP and a former IRR chair, currently chairs the ABA Death Penalty Moratorium Implementation Project Steering Committee.