The American Bar Association conducts many programs that advance and advocate for the legal profession. Another of the ABA’s core goals is to promote the rule of law. One area where the association fulfills this mission, and with life-or-death consequences, is through its Death Penalty Representation Project.
This summer, a major milestone was reached when the resentencing of Tennessee death row prisoner Andrew Thomas meant 100 capital cases have been finalized with a sentence of less than death with the assistance of the project and its pro bono partners.
Most of those cases, like the Thomas case, have resulted in resentences to life or a term of years, after lawyers proved that a death sentence would be unconstitutional. In addition, five death sentences were commuted to life terms after grants of executive clemency; and 15 of those 100 prisoners were released from prison altogether after their attorneys proved they were wrongfully convicted of crimes they did not commit. In total, more than 350 prisoners have been assisted by the project and its volunteers since 1998, nearly half of which have cases that are still in progress in the courts.
In September, the ABA Death Penalty Representation Project recognized some of the dedicated lawyers and others who have donated countless pro bono hours toward improving the quality and availability of legal representation for persons facing possible death sentences.
The project honored Kelley J. Henry, a supervisory assistant federal defender in Tennessee, where she represents men and women on death row, with the 2019 John Paul Stevens Guiding Hand of Counsel Award. Henry recently led a groundbreaking challenge to Tennessee’s state execution protocol, developing new scientific evidence about the possibility of torturous executions that has shaped similar lawsuits across the country.
In accepting the award, Henry talked about her career. “It’s a study in brokenness,” she said. “Brokenness of clients. Brokenness of the system that failed them before they could even walk or talk.”
Skadden, Arps, Slate, Meagher & Flom LLP and White and Case LLP each received Exceptional Service Awards for outstanding pro bono representation to prisoners on death row. Ronald J. Tabak, pro bono coordinator at Skadden, received the Project Leadership Award for his extraordinary leadership and contributions to the project.
Philadelphia District Attorney Larry Krasner, a former defense attorney in capital cases, gave the keynote address at the ceremony in Washington, D.C., and talked about the great power in prosecutors’ hands and how seeing how dysfunctional the system was, decided to run for office and change it. He talked about a growing excitement among young lawyers to be involved in progressive district attorney offices where they can make a difference, and urged defense attorneys to consider running for office.
The ABA Death Penalty Representation Project has worked to address the counsel crisis facing death row prisoners for more than 30 years. Since 1989, when the U.S. Supreme Court declared that the Sixth Amendment provides no guarantee of counsel to capital prisoners in post-conviction or habeas proceedings, many prisoners on death row were left without meaningful access to the courts to raise significant constitutional claims about errors with their conviction or sentence, such as problems with representation, jury selection or prosecutorial misconduct.
Not having state or federally mandated offices or attorneys equipped to handle these vital appeals – especially since many death penalty states routinely underfunded trial counsel systems, as well – meant that countless death row prisoners were being executed unaided by the zealous representation crucial to fairness, accuracy and reliability in death penalty prosecutions.
The project’s volunteers have stepped in to fill this critical need, donating their time, skills and resources to ensuring that every person facing a death sentence has a committed advocate to fight on his behalf. While not every case ends with a win, the project counts every case placed with pro bono counsel as a victory, regardless of the eventual outcome. Without the assistance of counsel, a prisoner has no voice in the legal system to tell his story and seek help from the courts. In the absence of a constitutional guarantee of counsel, volunteer attorneys represent access to justice for their clients and integrity in the criminal justice system.
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