The American Bar Association issued a report this week that shows that the problems a state commission found with the death penalty earlier this year were not anomolies and were, in fact, systemic deficiencies that cannot be repaired.
Studying eight states, the ABA discovered:
- Every state studied appears to have significant racial disparities in imposing the death penalty, particularly associated with the race of the victim, but little has been done to rectify the problem.
- Judicial elections mean that electoral pressures may influence judicial decisions, and candidates for judges in many states discuss their views of the death penalty during campaigns.
- States often do not have policies in place to ensure that lawyers representing people with mental retardation or mental illness fully appreciate the significance of their clients’ mental disabilities. And states do not formally commute death sentences when an inmate is found incompetent, and they do not require instruction of jurors on the distinction between insanity as a defense and reliance on a mental disorder or disability to mitigate sentencing.
- In clemency proceedings, most states fail to specify the type or breadth of review, or to require the clemency decisionmaker to explain reasons for their decisions.
- Most states have had at least one serious incident of mistakes or fraud in crime laboratories. They often do not require that crime laboratories and medical examiner offices be accredited, or that crime laboratories make their standards and procedures public. The laboratories are often seriously underfunded and do not use the most sophisticated testing procedures.
- With respect to collection, preservation and testing of biological evidence, most states do not require preservation of the evidence through the entire legal process until the accused is either released from prison or executed. As scientific testing capability advances, evidence that could prove innocence may be destroyed.
- Testing statutes create onerous procedural hurdles impeding the ability of convicted persons to file for and obtain DNA testing.
- States do not require law enforcement agencies to adopt procedures comporting with national best practices on identification and interrogation, and most states do not require law enforcement agencies to videotape or audiotape custodial interrogations in murder cases.
- States are not establishing policies or requiring prosecutors’ offices to establish policies on exercise of prosecutorial discretion, or on evaluating cases that rely on evidence such as testimony of jailhouse snitches, or on eyewitness identification or confessions, considered as less reliable evidence. Many states don’t require specialized training for capital cases, and most states have not disciplined the prosecutors even when serious misconduct has been found.
- Some states fail to provide for appointment of defense counsel in post-conviction proceedings, and all states fail to provide for appointment of counsel in clemency proceedings. Capital indigent defense is generally significantly underfunded, and compensation paid to appointed capital defense attorneys is often inadequate. Many states require only minimal training and experience for defense counsel in capital cases.
- Some states do not require a meaningful proportionality review to determine whether death sentences are imposed on similarly situated defendants and few, if any, maintain databases adequate to achieve such a review.
- With respect to post-conviction review, many states provide unreasonably short time periods in which to petition the courts for review, and most states allow judges in such proceedings to adopt findings of fact and conclusions of law proposed by one party, potentially undermining the judge’s exercise of independent judgment. Some states assign post-conviction review of whether errors were made at trial to the same judge who presided at trial, and many states make it difficult to obtain discovery, or evidentiary hearings.
- Jury instructions often are poorly written and poorly conveyed, making it difficult for jurors to understand their roles and responsibilities. States often fail to provide instructions in writing, and instructions fail to define important terms, or to tell jurors that they may impose life sentences even if there are no mitigating factors or where aggravating factors are proven beyond a reasonable doubt.
The list of problems is long and consistent across state borders, similar to the problems found in Illinois, New Jersey and so many other places not studied. Five of the state study groups commissioned by the ABA caled for moratoriums — and the ABA is calling for a national moratorium.
And that’s fine as far as it goes.
But a moratorium is only useful if it leads to the eventual abolition of capital punishment — a barbaric punishment that has been abandoned by the rest of the western world and a growing number of countries in the developing world.
South Brunswick Post, The Cranbury Press
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Hank Kalet 