Before We Take a Life, Give Justice
Former Attorney General of the United States
Walter McMillian was released from death row to the welcoming arms of his family after the
state of Alabama admitted that prosecutors had willfully withheld evidence of his innocence. He had
been convicted of murder in a two-day trial seven years earlier. Although no physical evidence linked
him to the crime, three witnesses, who had all received favors from the state for testifying, connected
him to the murder. All three later said they lied on the stand. One said he was pressured by the
prosecutors to implicate McMillian.
Leonard Herrera presented the U.S. Supreme Court with affidavits involving newly discovered
evidence of his innocence and positive polygraph tests from a variety of witnesses, including an
eyewitness to the murder and a former Texas state judge -- both of whom stated that someone else had
committed the crime. The Court, under the complex rules that govern habeas corpus appeals, ruled that
Herrera was not entitled to a new hearing on this evidence. Leonard Herrera was executed.
These are not isolated cases. Despite the U.S. Supreme Court's 1972 charge to the states to
overhaul their death penalty laws to make them less arbitrary and more fair, innocent persons are still
being sentenced to death, and the chances remain unacceptably high that innocent persons have been or
will be executed.
The American Bar Association recently showed its deep concern about the ways in which capital
cases are handled when it adopted a resolution calling for a moratorium on the implementation of capital
punishment until the procedures used conform to basic principles of fairness and reliability. The ABA
resolution grew out of concern over very troubling recent developments in three principal areas:
Inadequate counsel: Many jurisdictions have failed to establish the kind of legal services
necessary to ensure that defendants charged with capital offenses receive an adequate defense.
Numerous death penalty states have no working public defender systems, and many simply assign
lawyers at random from a general list. The defendant's life ends up entrusted to an underqualified and
overburdened lawyer who may not have experience with criminal law at all, let alone with death penalty
cases, which involve a complex body of constitutional law and unusual procedures that do not apply in
other criminal cases. In two recent cases, state trial judges assigned capital cases to young lawyers who
had passed the bar only few months earlier. In many others, lawyers who had never completed a
criminal case of any kind, and even a third-year law student, were appointed. Appointed lawyers are
also quite often unable to conduct an adequate defense simply because of a lack of funds to pay
investigators and expert witnesses. Many states cap lawyers' fees and investigative services at a
fraction of the reasonable cost to discover and present crucial facts. Poor representation at trial greatly
increases the risk that innocent people will be unjustly convicted, and compounds the waste of time and
money in subsequent appeals and retrials.
Barriers to meaningful judicial review: The U. S. Supreme Court has erected numerous
procedural barriers to inmates who claim their state death sentences were imposed in violation of the
Constitution or federal law. Moreover, the last Congress enacted sweeping new restrictions to habeas
corpus appeals -- the ancient writ that allows convicted defendants to challenge the legality of their
convictions -- making it more likely that constitutional violations will go unremedied. To make matters
worse, Congress also eliminated critically needed organizations that provided expert advice and
assistance to lawyers trying to cope with representing death sentenced inmates.
Failure to confront racial bias: Numerous studies and reports have confirmed that racial bias
and poverty continue to play too great a role in determining who is sentenced to death. A report issued
several years ago by the House Judiciary Committee documented that the killer of a white person is far
more likely to receive the death penalty than the killer of a black person.
A former President of the American Bar Association, John J. Curtin, Jr., perhaps said it best
when he told a congressional committee: "Whatever you think about the death penalty, a system that
will take life must first give justice."
I am not opposed to capital punishment. But the serious flaws in our capital punishment justice
system have not been addressed. Unless and until greater fairness and fundamental due process prevail
in the administration of the death penalty, a moratorium on executions is the appropriate response to the
failures that pose a genuine threat to the liberties we all hold dear.
Death Penalty Questions and Answers
Q: What is the ABA's policy on the death penalty?
A: The ABA has no policy on the death penalty per se. However, for many years the ABA
has conducted studies, held educational programs and adopted policies concerning the
administration of the death penalty. The ABA's principal policies include: encouraging
competency of counsel in capital cases; preserving, enhancing and streamlining habeas corpus
review of death penalty proceedings; striving to eliminate racial and ethnic discrimination in
capital sentencing; and preventing the execution of mentally retarded persons and persons who
were juveniles at the time of their offenses.
In February 1997 the ABA adopted a policy calling upon each jurisdiction that imposes
the death penalty not to carry it out until the jurisdiction implements policies and procedures that
are consistent with these longstanding ABA policies. This call for a moratorium on the death
penalty was focused on the procedural means by which capital punishment is implemented, which
is primarily at the state level.
Q: How many people are awaiting execution on death row?
A: In 1994 Congress passed a crime bill expanding the number of federal death penalty
offenses to 50, including deaths resulting from terrorism, and establishing procedures to govern all
federal death penalty prosecutions. Since then, only 13 men have received death sentences for
federal crimes, compared with several hundred in state courts. There are now 12 men on the
federal death row, compared with more than 3,000 individuals on state death rows.
The average time on death row for those executed in 1995 and 1996 was 11 years and
two months. The average time of those currently on state and federal death rows is more than six
Q: How do capital cases differ from other cases?
A: Capital cases are far more complex and protracted than other cases, requiring large
investment of time by appointed counsel and familiarity with the highly specialized body of capital
sentencing law. They involve two stages, whereas all other trials have only a guilt/innocence
At the sentencing stage of capital trials, the defense is permitted to present anything about
the defendant's background, from birth on, that might make it more likely that the jury will not
vote for death. The defense must also prepare to deal with evidence of aggravating factors that
may not be directly related to the alleged offense.
Moreover, many of the legal issues involved in death penalty cases, and in particular the
constitutional doctrines, are unique to such cases. Handling them effectively requires substantial
sophistication. Failure to understand them can lead to fatal failures to raise meritorious
arguments. Even jury selection is more complex than in other cases. And heightened publicity,
which frequently is engendered by death penalty cases, adds to the burden on defense counsel.
Q: How is the ABA involved in appointing competent counsel to death penalty cases?
A: The ABA has adopted detailed standards for competent counsel. These standards attempt
to ensure that lawyers appointed to represent capital defendants have sufficient experience
relevant to both phases of a capital trial -- the guilt/innocence determination and the sentencing
proceeding -- as well as sufficient resources and sufficient access to investigators and experts.
The ABA has advocated that counsel in capital cases be selected by independent
appointing entities rather than by judges. The track record of judges' appointees reveals that far
too often, judges appoint lawyers whose background and experience do not remotely qualify them
to handle a capital case.
As one of its primary goals, the ABA's Postconviction Death Penalty Representation
Project seeks to expand the pool of lawyers willing to serve as volunteer counsel for death row
inmates in their post-conviction appeals. The Project has succeeded in dramatically increasing the
number of volunteers, largely as a result of appeals by the ABA to individual lawyers and law
firms. The Project's long range goal has been to create programs in each death penalty state to
ensure the timely appointment of competent, trained and adequately supported counsel, and to
develop public funding to compensate lawyers for their work in these cases.
Q: What can the courts do about lawyers who are ineffective in capital cases?
A: Unfortunately, the legal standard for ineffective assistance of counsel used by the courts is
so low that many lawyers whose incompetence has harmed their clients have been held not to
have been ineffective. The ABA has criticized the standard, and has urged that courts not only
replace it but also consider on the merits constitutional claims that lawyers have negligently failed
to present. However, the ABA has no power to sanction lawyers who are ineffective.
Q: How much do death penalty cases cost taxpayers?
A: Only a handful of cases have exceeded the Administrative Office of the U.S. Courts' 1992
projected estimate cost of $337,500 in CJA costs per federal capital cases (i.e. per defendant).
Most cases have been completed for substantially less.
Much of the high costs of death penalty cases is attributable to the complexity of these
cases and to the necessity of appointing two lawyers. This requirement was enacted for federal
capital cases by the First Congress in 1790, and represents the norm for state court death penalty
representation as well.
Steps have been taken to limit costs. Last year, a new $125 statutory cap on the hourly
rate for laweyers in death penalty cases went into effect, along with a $7,500 waivable limit on a
presiding judge's authority to prove payments for investigators, experts and other services.
The ABA has neither the power to compel the appointment of qualified counsel nor to
guarantee that they are paid adequately. Moreover, the ABA does not have the power to compel
lawyers to charge lower fees or to make themselves available for appointment in capital cases.
What the ABA can do, and has done, is to advocate vigorously for appointment practices,
compensation formulas, and the right to counsel in postconviction and habeas corpus proceedings,
as well as for funding for capital punishment resource centers. It has also encouraged its members
to take on the representation of indigent death row inmates.
Q: Why aren't caps placed on death penalty defense costs?
A: Arbitrary, inflexible "caps" on lawyer compensation -- without any corresponding limit on
the time, manpower and money invested by the government -- will increase the likelihood of
lengthy and costly retrials after appellate courts reverse convictions based on inadequate defense
representation. A legal system cannot operate properly if only the court and the prosecution are
granted the time and resources necessary to carry out their responsibilities, while the defense runs
out of funding and is expected to work for nothing after an inflexible limit is reached.
Moreover, low state limits on compensation are largely responsible -- where they are not
ignored -- for the deplorable state of defense representation in many state capital sentencing
systems, which in turn feeds delay, forces retrials, and undermines the reliability of the system as a
Inadequate funding (and counsels' fear of encountering a financially-ruinous "cap"
midway through a four-month trial) will also prevent the courts from securing qualified counsel,
thus guaranteeing still more reversals on appeal.
Trial judges are better able than Congress to determine how much time and expert services
are "reasonably necessary" for an adequate defense in any particular case. In any event, any fee
cap must be flexible, giving way to extraordinary circumstances in individual cases.
Q: Why did Timothy McVeigh's defense cost so much?
A: Although the $50 million estimated price tag cited in press reports for the Oklahoma City
bombing included prosecution, government, FBI and defense costs, readers have misinterpreted
the figure to be only defense costs. Likely defense costs, while high, are far lower than this
Although the costs of this unprecedented case are likely to be very high, it would not be in
the national interest to prevent the defense, by means of rigid cost restrictions, from investigating
every reasonable lead or possible defense in a case of this nature. Justice must be done and be
seen to be done, and arbitrary restrictions on the defense will have a corrosive and long-lasting
effect on public confidence in the outcome.
Q: Was the McVeigh verdict fair?
A: The ABA will not comment on the conduct of this trial, nor the appropriateness of this
verdict. This case is unique in virtually every respect -- in the unprecedented resources devoted
to the case by the government and in the amount of work that defense counsel had to undertake
to meet the government's charges.
But the case showed that both the prosecution and defense had sufficient resources to do
their respective jobs and thereby enabled the jury to do its job. The prosecution and defense costs
were undoubtedly high in this case. But because neither side was hampered by rigid cost
restrictions, public confidence in the verdict and justice system are also high.
This case shows the merit of ABA's recommendations to make adequate resources
available at the capital trial level. This will greatly increase public confidence in the system and
minimize errors which complicate and lengthen all later stages of judicial review.
Q: How long will it take before McVeigh is executed?
A: Estimates of when McVeigh's execution will be carried out are imprecise. Most experts
estimate from three to five years, taking into account post-trial motions, the direct appeal,
including time for briefing and oral argument and the court's decision, certiorari appeal to the
U.S. Supreme Court, one year to file section 2255 appeal (federal habeas corpus), possible
appeals to the U.S. Court of Appeals and Supreme Court, and possible filing of a second 2255
petition (new or withheld evidence).
The judges who must hear and decide these appeals have many other cases on their
dockets and cannot drop their other cases and focus solely on the McVeigh case. As the ABA has
pointed out, the federal and state judicial systems have suffered with the problems of vacant
federal judicial positions and strained resources for many years.
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