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By Martha Barnett




Martha Barnett, President

American Bar Association

The evidence is so overwhelming that a moratorium on capital punishment is needed in the United States that now even a majority of people who support the death penalty believe it should be suspended until questions about its fairness can be studied.

A Department of Justice study released last month shows that in the last five years in the federal courts, 74 percent of the people sentenced to death were minorities, and that federal prosecutors in only about one-half of the federal judicial districts in the country have recommended the death penalty. In fact, prosecutors in only five of the 94 federal judicial districts have brought nearly 40 percent of the death penalty cases. Neither race nor geography should be a factor in administering federal death penalty laws – but clearly, both are.

State governments fare no better under examination.

For example, the Charlotte Observer recently examined the administration of the death penalty in North Carolina and South Carolina, revealing instances of incompetent defense counsel. It concluded in an editorial: "Policymakers in the Carolinas should impose a moratorium on executions until they can ensure that defendants have competent legal representation from the start . . . Executions should halt until injustice clearly has been rooted out of the process."

In Texas, the Texas Civil Rights Project released last month a comprehensive 87-page report on the death penalty showing, among other things, only a 3 percent rate of reversal of capital convictions by the Court of Criminal Appeals – an extremely low reversal rate compared to other states, and even compared to the rate of reversal in Texas prior to 1995 when state law was changed to accelerate appeals. The project concluded that a moratorium was needed in Texas.

In a similar vein, the Chicago Tribune exposed a flawed system in Illinois, prompting Illinois Gov. George Ryan to suspended executions in his state, saying, "Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate."

Governor Ryan – who supports the death penalty – is the first and only governor to take this courageous action. Being first to act on a controversial issue seldom is easy.

But in fact, the American people agree with Governor Ryan! According to a public opinion survey conducted in August for the Justice Project by Peter D. Hart Research, 68 percent of Americans – including nearly 60 percent of death penalty supporters – favor suspending capital punishment until fairness can be restored to the system.

Clearly, the paradigm has shifted. The real question no longer is whether you favor or oppose the death penalty. The question now is whether you favor or oppose suspension of the death penalty until fairness can be restored to the system.

The American Bar Association, which has no position on the death penalty per se, called for a suspension of capital punishment as long ago as 1997, having concluded that reforms are absolutely essential to guarantee fundamental fairness and due process. Since then it has become even more apparent that states should conduct a comprehensive review of their capital punishment processes and procedures. This review should include policies for:

    • Establishing guidelines for the appointment and performance of counsel in death penalty cases
    • Assuring a full, independent state and federal review of habeas corpus claims
    • Striving to eliminate discrimination in capital sentencing on the basis of race of either the victim or the defendant
    • Preventing the execution of people who were under age 18 at the time of their offenses and the execution of mentally retarded individuals.

In state after state, and in the federal government, flaws in the system of capital punishment have been revealed. The public understands the system is broken. Government leaders must act now. They should follow the lead of Illinois: impose a moratorium and begin a serious effort to reform the justice system.

Editor’s Note: For verification, or if you have questions, please call Anne Nicholas, ABA Media Relations and Communication Services, 202/6621092, or send email to [email protected]. If you use this guest editorial, we would be grateful to receive a tearsheet or other copy: Anne Nicholas, American Bar Association, 740 15th St. NW, Washington, D.C. 20005.