More resources needed for death penalty cases

ABA Past President Michael S. Greco testified April 8 that the "administration of the death penalty in America is woeful, " and said more resources - financial and human - must be committed to improve the situation and achieve the right to a fair trial for all citizens.

Greco, testifying before the Senate Judiciary Subcommittee on the Constitution, said that capital cases are the most visible and complicated of all criminal cases, and the consequences of making mistakes in these cases are the most extreme. Despite this knowledge, state governments have failed for many years to take the steps they must to address longstanding and systemic problems in the death penalty counsel system, he said.

Greco explained that while the ABA has not taken a position on the constitutionality or appropriateness of the death penalty, the association has adopted a series of policies concerning the administration of capital punishment and first adopted the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases in 1989. The guidelines, greatly expanded and updated in 2003, are now the accepted standard for the defense of death penalty cases and have been adopted in a number of death penalty jurisdictions.

In addition, the association helps provide volunteer legal representation for indigent death row inmates through its Death Penalty Representation Project.

Greco said that the ABA approved additional policy in 1997 urging a halt to executions until discrimination was eliminated and fundamental fairness and due process were guaranteed to those facing capital punishment. The action, he explained, was prompted by two developments: enactment of the Antiterrorism and Effective Death Penalty Reform Act, which imposed statutes of limitations on death row appeals for the first time and sharply curtailed the availability of appellate review; and elimination of all federal funding to the Post-Conviction Defender Organizations that had represented many death row prisoners and had advised appointed and pro bono lawyers who handled capital habeas corpus cases in state and federal courts.

"These two steps taken by Congress, in our view, have had disastrous consequences on the quality and availability of legal representation for persons facing a possible death sentence and have significantly and regrettably heightened the risk that an innocent person may be executed," Greco testified.

He highlighted the results of assessments conducted over the past four years by the ABA Death Penalty Moratorium Implementation Project, which studied the death penalty systems in eight states: Alabama, Arizona, Florida, Georgia, Indiana, Pennsylvania, Ohio and Tennessee. The assessments, which revealed grave problems in each state, pinpointed the quality and availability of competent legal representation for capital defendants and death row prisoners as the largest and most problematic issue.

Bryan A. Stephenson, executive director of the Equal Justice Initiative of Alabama and a professor of clinical law at NYU School of Law, agreed that the effort to provide adequate legal assistance to capital defendants has proved to be unobtainable in many states and there is a tremendous need for dramatic reform. He emphasized that even in states where there are public defender systems, funding and compensation for attorneys remain low and resources for investigations and experts are scarce. He also pointed out that the states with the most active death rows are those that have historically poor records of providing competent counsel to people accused of capital crimes.

Judge Carolyn Engle Temin of Pennsylvania proposed three steps: provide that all persons accused of capital crimes are eligible for appointed counsel regardless of their financial condition; enact the ABA guidelines into law as the minimum requirements for counsel in capital cases; and provide funds for establishing capital public defender offices in states that do not have them or provide additional funds to existing public defender systems.

Donald B. Verrilli Jr., a partner at Jenner & Block, also testified in support of more resources to pay lawyers at a level that enables them to put in the effort needed and to hire experts, including psychologists and those specializing in DNA analysis and social history.

Subcommittee Chairman Russ Feingold (D-Wis.) said it is a "moral imperative" that as long as the country has a death penalty, "we owe it to those who are charged with capital crimes, we owe it to our criminal justice system, and we owe it to the principles of equal justice on which this nation was founded to make sure that those charged with capital crimes have good lawyers who have the resources they need to mount an effective defense."


ABA Past President Michael S. Greco and Bryan A. Stephenson, executive director of the Equal Justice Initiative of Alabama, testified at the April 8 hearing on death penalty representation.