To Ensure Justice for All, Impose Moratorium on the Death Penalty

By Michael Greco

Published December 16, 2005, issue of December 16, 2005.
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On Tuesday, Stanley “Tookie” Williams was executed, despite a nationwide outpouring of support for clemency in his case. Those arguing on his behalf maintained Williams’ s innocence, and lauded his abdication of gang life and his contributions to society while on death row.

But it was hard not to get the feeling that the pleas on Williams’s behalf received public notice as much because of who was making them as because of their merits. For most inmates on death row, unfortunately, there are no celebrities lining up to point out redemption, little or no political outcry mounted in the hopes of influencing a governor, and no national press coverage.

That Williams’s supporters were able to draw as much public attention to his case as they did speaks to the unfairness of America’s death penalty system. The profound and systemic problems in this country’s death penalty jurisprudence make it arbitrary and capricious — so much so as to be fatally flawed. It is for this reason that the American Bar Association has, for nearly a decade, called for a nationwide moratorium on executions, even though it has never taken a position for or against the death penalty itself.

If government is to take life, it must first ensure that it has provided justice — due process and fairness throughout every stage of the proceedings — to the condemned. That means fairness not tainted by discrimination based on race, either of the defendant or of the victim. That means decisions about prosecution and the penalty to be sought that are made without regard to where in the nation, state or locality a charge is brought. That means the quality of defense does not depend on the wealth of the victim, or on the lack of resources of the defendant.

It means that competent defense lawyers who are trained to handle capital cases and who have adequate resources to investigate every facet of the case and the defendant’s background must be made available at every stage of the proceedings. It means fairness in trial, and fairness in appeal, and fairness in petitioning for clemency.

The reality in death penalty cases in the United States, however, is far from that ideal.

Administration of the death penalty is neither fair nor consistent, and can fairly be described only as a haphazard maze of unfair practices — a maze that tolerates injustice in case after case. That 122 people have been released from the death rows of 25 states since 1973, based on evidence of their innocence, is testament to the fact that our system does not deliver justice. Until we can be sure that it does, nobody should be put to death.

A temporary moratorium on the death penalty would remove the pressure of impending executions to allow detailed analysis of death penalty administration in each jurisdiction and implementation of the reforms necessary to ensure fairness and accuracy. Protocols developed by the American Bar Association offer death penalty jurisdictions a guide to assessing their systems against accepted standards for due process and fairness, a first and necessary step in rectifying shortcomings.

The protocols address the adequacy of defense services, the need for full and accurate jury instructions, the need for an independent judiciary able to protect the rights of the accused, the importance of preserving the availability of state and federal appellate relief, the fairness and comprehensiveness of clemency proceedings, and the necessity of protecting specific segments of our population especially vulnerable to discrimination.

Only a few states have undertaken the kind of assessment contemplated by the protocols. In Illinois, where a moratorium on executions has been in effect since 2000, a blue-ribbon state panel evaluated the state system and recommended numerous reforms. Some of these have been implemented.

California, where Williams was executed this week, launched a study in 2004 and expects a report in 2007 — although without implementing a moratorium. North Carolina just authorized an assessment, but again without a moratorium. In New Jersey, the State Senate was expected to vote this week on a bill to impose a moratorium and launch a study, and the State Assembly is scheduled to do so this January.

But there are 38 death penalty jurisdictions in the United States, and most have not looked to see whether what they are doing comports with standards of fairness and justice.

The American Bar Association is currently conducting preliminary assessments of how the death penalty works in 16 states, comparing their practices with our protocols. We expect to issue our findings on Georgia’s death penalty system in January. While we anticipate answering some of the questions about death penalty jurisprudence in the states selected for our study, we do not have the necessary access to information to evaluate all the checkpoints of a state system. Thorough and complete analysis of a state system requires the willing participation of all elements of the system — something that only the state itself can command.

The American criminal justice system, with its constitutional guarantee of presumed innocence and protection of individual rights, often has served as a model for other nations. But today our system is not protecting the innocent against wrongful or erroneous convictions.

Indeed, it cannot protect the innocent unless it protects everyone with a criminal justice system that administers capital punishment in a fair and nondiscriminatory way. Until we can assure ourselves, in California and throughout the country, that we have achieved that level of fairness, the need for a moratorium on executions remains as urgent as ever.

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