WASHINGTON, D.C.The American Bar Association (ABA) issued a severe critique Oct 30 of the way states are handling death penalty cases. A three year study found significant racial disparities in imposing the death penalty, mistakes or fraud in the crime laboratories, lack of preservation of DNA evidence, substandard practices in police interrogations and identifications, electoral pressures influencing judges, wholly inadequate representation for indigent defendants, and mishandling of mentally impaired persons throughout the legal process.
At the news conference held at the National Press Club, the ABA released to the public the detailed analysis of how the death penalty is being implemented in eight sample states, which are Alabama, Indiana, Ohio, Pennsylvania, Tennessee, Arizona, Florida and Georgia.
None of these states, and by extension probably none of the rest of the 38 states that permit the use of the death penalty, is providing the essentials to make the system "fair" and "accurate," according to the ABA. The ABA does not take a position either for or against capital punishment, but the investigations strongly support reform in the way it is implemented in the 38 states. Since 1997, the ABA has called for a nationwide moratorium on executions.
"After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed," said Stephen F. Hanlon, chairman of the ABA Death Penalty Moratorium Implementation Project and host of the conference.
Each of the states had a local team of legal experts assess aspects pertaining to due process and fairness related to the death penalty.
Serious Problems Found by the ABA State Analysis Teams
Below is a summary of a few of the highlights in the reports or spoken at the news conference which featured seven specialists on the subject in addition to the host. Sometimes the wording is taken verbatim from the "key findings" in the overall summary report.
Before the entire legal process has run its course, states are generally discarding or destroying evidence (physical or biological) that could prove innocence. Florida and Georgia were the only two states of the eight that are pretty good about preserving evidence.
One state in the study, Alabama, does not have a policy to provide access to DNA testing for the defendant. Access to DNA testing was not allowed for Darryl Grayson, though it could have probably proved his guilt or innocence, said Seth Miller, executive director of the Florida Innocence Project. Grayson was executed last July.
Most states are not requiring the police to videotape or audiotape the entirety of interrogations in murder cases. The practice is sporadic in the eight states studied. States are not requiring crime labs and medical examiner offices be accredited. Most states have had at least one serious incident of crime lab error or fraud, and many crime labs are seriously underfunded.
The courts have found "serious misconduct" by prosecutors in capital cases in most states, yet the prosecutors are not disciplined. Defense attorneys handling death penalty cases are not required to meet minimum standards in training and experience in many states. The compensation paid to appointed capital defense attorneys is often woefully inadequate.
Some states are failing to provide counsel during the appeal process, and all states fail to provide counsel in clemency proceedings.
Much discussion is taken up in the reports with issues of discrimination and undue influence in capital cases. After a death sentences has been imposed, a review of similarly situated defendants should take place to ensure justice is "proportionate" and that discrimination did not occur. These reviews, if conducted at all, tend to be done in a cursory fashion. In Arizona, there is no review conducted by the state supreme court "to ensure the death penalty is reserved for the worst crimes and the worst criminals," said Hanlon.
Judges are frequently influenced by the electoral pressures. Judge Morris Overstreet said, "You don't tend to get elected if you say you are going to be soft on crime." Some judges have even used cases they tried, or recently tried, in campaign brochures, said the former judge of the Texas Court of Criminal Appeals. When judges discuss and advertise their views of the death penalty, it can bias their judicial independence, said Judge Overstreet.
All eight states that were investigated showed significant racial disparities in their handling of capital cases. In states that acknowledged the problem, little, if anything, has been done to rectify the problem. In Ohio, you are almost four times more likely to receive the death sentence if you kill a white person than if you kill a black, said Hanlon. In a study of four of the states (IN, TN, GA, and OH) between 1981-2000, the likelihood of receiving the death penalty is usually highest for whites killing whites, and substantially lower for blacks killing blacks, said Ray Paternoster, professor of criminology, University of Maryland.
Mental Illness and Retardation
The Supreme Court has said that it is unconstitutional to execute offenders with mental retardation (Atkins v. Virginia). Between 2 and 5% charged with a capital crime suffer from serious mental illness such as schizophrenia or psychosis, or mental retardation, said Professor Chris Slobogin, University of Florida School of Law. Even though mentally ill persons are often very suggestive and vulnerable, police tend to treat them no differently in their interrogations than other offenders, which can lead to false confessions.
Most states fail to properly instruct jurors of the difference between the defense of insanity and a mental impairment as a mitigating factor at sentencing. In Pennsylvania, nearly all capital case jurors (98.6%) failed to understand some of the juror instructions, said Hanlon. Juries often erroneously equate mental retardation with dangerousness, and then perceive the mental condition as an aggravating factor rather than as a mitigating factor, said Professor Slobogin.
Status of the Death Penalty
The topic of the death penalty has received a lot of news coverage lately. Last Tuesday evening, the Supreme Court granted a stay in execution just 19 minutes before the inmate was to be executed by lethal injection which all states use except one (Nebraska). The reason has to do with the Constitutionality of the "cocktail" employed to carry out the execution. It appears certain that the high court intends to block further executions until it decides a Kentucky case next spring.
State courts have also been active in staying executions. No fewer than 18 scheduled executions were halted in five states during the first quarter of 2007, according to the Death Penalty Information Center. Many political leaders are making public their reservations about using the death penalty, including Maryland's governor, Martin O'Malley, Governor Ted Strickland of Ohio, Phil Bredesen of Tennessee, and former Governor George Ryan of Illinois. The latter two called a moratorium on further executions.
The Supreme Court reinstated the legality of the death penalty in 1976. Over 3,000 persons are on death row. Most are in California (660), Florida (397), Texas (393), Pennsylvania (226), Alabama (195), Ohio (191), North Carolina (185), Arizona (124), Georgia (107) and Tennessee (107), according to the Death Penalty Information Center in August.
Majority of Americans still support capital punishment, despite the fact that 89 countries legally abolished the death penalty for all crimes and 40 more countries may retain it for special crimes, but in practice no executions are being carried out in these countries either. In the U.S., by contrast, the total number of executions since 1976 was 1,090. The total number last year (2006) was 53.
The majority of executions are being carried in China, Iran, Saudi Arabia, Pakistan, Yemen, Vietnam, and the United States. Nearly all of these countries are considered rogue states.
Even many supporters of capital punishment want to see it carried out more equitably. What may have shaken up the confidence of the public in the death penalty are the 120 individuals--possibly more now--on death row who have been exonerated, according to Andrew Cohen, chief legal analyst of CBS News. Many of those formerly in favor of capital punishment find "life imprisonment without possibility of parole," which is increasing being made available to jurors, as an acceptable alternative to the death penalty.
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