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ABA weighs in on two death penalty debates

March 9, 2020

The American Bar Association filed two amicus briefs in death penalty cases in late February — one that seeks more transparency regarding the protocols used in Idaho’s lethal injections, and the other asking the U.S. Supreme Court to confirm the Sixth Amendment standard for effective counsel in capital cases.

The ABA recently filed amicus briefs in two death penalty cases: 'Aliza Cover v. Idaho Board of Correction' and 'Timothy Wayne Kemp v. Dexter Payne.'

The ABA recently filed amicus briefs in two death penalty cases: 'Aliza Cover v. Idaho Board of Correction' and 'Timothy Wayne Kemp v. Dexter Payne.'

Kelly Nigro-Moment Open / Getty Images

Both briefs, which cited ABA policy or guidelines approved by the House of Delegates, are intended to provide information to guide the courts in deciding death penalty law.

In a brief filed with the U.S. Supreme Court on Feb. 27, the ABA asks the justices to grant certiorari in the case of an Arkansas man challenging the way lower courts assessed effective counsel in the punishment phase of his death penalty trial. At issue is whether trial counsel for Timothy Wayne Kemp, who was convicted of four counts of murder and sentenced to death, was constitutionally ineffective for failing to adequately investigate and present mitigating evidence related to Kemp’s childhood abuse, fetal-alcohol exposure and post-traumatic stress disorder.

Two lower courts deemed the investigation of Kemp’s background as sufficient, although both concluded a more complete investigation could have prevented a death sentence from being imposed. The ABA brief noted a growing trend in the failure of courts to conduct a meaningful factual and legal analysis related to ineffective counsel. It said the Supreme Court “should grant the petition” to confirm generally accepted levels of representation for capital cases.

In its Feb. 28 brief to the Idaho Supreme Court, the ABA cited 2015 policy that urges government entities to publicly disclose “relevant information regarding execution procedures,” including details about any drugs to be used, to prisoners facing execution and to courts.

Although Idaho law does not bar disclosure, the Department of Correction cited its own regulations in refusing to release the information to a University of Idaho law professor. During the past decade, states have had difficulty obtaining tested drug formulas for lethal injections after the U.S.-based manufacturer of a critical component stopped making it.

The ABA brief said public disclosure of the information furthers the Constitutional principles of free speech and due process, and an Idaho death-row inmate has a right to determine “if the drugs will cause death in a humane manner that comports with Eighth Amendment standards.” 

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