The American Bar Association, the nation’s largest and most influential organization of lawyers, voted overwhelmingly Monday to seek a halt to the death penalty, asserting that it is administered through “a haphazard maze of unfair practices.”
After a vigorous debate at its winter meeting in San Antonio, the ABA voted for the moratorium on executions until the federal government and the 38 states with capital punishment statutes can ensure greater fairness and due process to the criminal defendants who are affected by it.
The 280-119 vote marked a shift in policy for the ABA, which has about 370,000 members and often is a potent voice in Congress and state legislatures. In recent years, as the ABA has waded into issues such as abortion rights, conservatives have characterized the group as left-leaning in its policies and in its role of evaluating the worthiness of presidential nominees to the federal bench. But it nonetheless is an influential lobbyist willing to spend considerable time and resources trying to influence legal policy around the country.
The Justice Department strongly opposed the action by the ABA’s House of Delegates, the group’s policy-making body, and Deputy Attorney General Jamie Gorelick traveled to Texas to lobby against the proposal.
Gorelick voiced concern that the resolution could affect pending cases involving domestic terrorism. In the bombing of the Oklahoma City federal building, for instance, the government has decided to seek the death penalty for two men accused and is considering doing so in the Unabomber case.
Justice Department spokesman Bert Brandenburg said the administration believes “there is no justification for the moratorium.” The president worked to revive the death penalty for a number of crimes in the 1994 crime bill, Brandenburg said, including killings in certain drug or organized crime cases.
But proponents of the measure argued that many criminal defendants facing the death penalty are represented by inadquately paid or incompetent lawyers. Hundreds of the more than 3,000 men and women on death row nationwide have no lawyers to represent them in post-conviction appeals, which focus on possible violations of a defendants’ constitutional rights, supporters said.
There are instances of defense lawyers “who have been drunk at trial or fed parking meters during the testimony of key prosecution witnesses” while representing defendants accused of capital crimes, said Washingtonn, D.C., lawyer Virginia Sloan, one of the proponents, said in an interview after the vote.
Supporters of the death penalty moratorium, a group that included 20 of 24 past ABA presidents and former Attorney General Benjamin Civiletti, stressed that the measure should not be taken as outright opposition to capital punishment. Instead, they said they oppose the current process under which it is administered.
But ABA President Lee Cooper, a lawyer in Birmingham, Ala., disagreed with the approach his organization decided to take on the issue, and decided to oppose the measure Monday. “I took the position that we were voting up or down on the death penalty,” Cooper said in an interview. If that’s the position the ABA wants to take, he said, “we might as well do it” up front.
In the past, the ABA has opposed executions of mentally retarded persons and people who were 18 or younger when they committed a capital crime. The ABA also has pressed for the appointment of competent counsel, elimination of racial discrimination in capital sentencing and enhancement of “habeas corpus review,” which focuses on violations of a defendants’ constitutional rights.
Around the country, there are some signs of eroding support for the death penalty, even among some conservatives. Federal appeals judge Alex Kozinski, a Ronald Reagan appointee, recently attacked the legal machinery of capital punishment.
Factions within the ABA began pressing for the moratorium after passage of two recent federal laws. According to Sloan, one bill “dramatically circumscribed” the ability of federal courts to review state capital cases; the other eliminated federal funding for lawyers helping death row inmates pursue such appeals.
xxxx ABA takes a stand The ABA previously has adopted policies calling for: Competent counsel for all capital defendants. Availability of federal court review of state prosecutions. Efforts to eliminate racial discrimination in capital sentencing. No executions of mentally retarded defendants or those under age 18.