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The ABA's Death Penalty Report

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Yesterday, Mark Sherman of the Associated Press, reported on the ABA's recently published Death Penalty report. The story can be found here.

The report was issued Sunday, October 28, by the ABA's Death Penalty Moratorium Implementation Project, and according to the article, justifies a nationwide freeze on executions.

The report was based on the ABA's study of 8 state death penalty systems (Alabama, Arizona, Georgia, Florida, Indiana, Ohio, Pennsylvania and Tennessee). The study reviewed each state's: collection of DNA data and other evidence; law enforcement interrogation tactics; crime lab offices; prosecutorial professionalism; defense services; direct appeal process; post-conviction process; clemency process; jury instructions; judicial independence; treatment of minorities; and mental retardation and mental illness practices. In the end, the study concluded that only 3 out of the 8 states - Arizona, Florida, and Pennsylvania - sufficiently complied with the ABA standards for death penalty procedures. The report can be viewed here.

There are several problems with the ABA's report. First, as Mark Sherman noted at the bottom of his article, the report is prepared by death penalty opponents. In fact, the director of the project is an ABA attorney who uses her position to encourage state bar associations to press for moratoriums within their jurisdictions - no wonder every state these attorneys have studied has a flawed death penalty process! Bios for the attorneys can be found at the Project's homepage.

Second, the ABA does not finance a project to counter the Death Penalty Moratorium Implementation Project's findings. For example, there is no project devoted to studying the merits of death penalty sentencing and its implementation. There is no ABA study that demonstrates the deterrent effect of the death penalty in jurisdictions. This makes any death penalty report issued by the ABA one-sided, and counterintuitive to the ABA's mission of pursuing justice, particularly justice for the victims and their families.

Finally, the ABA report does not address the issue before the Supreme Court in Baze v. Rees. The report does not cover the effects, or the procedure, used by most states who have chosen to execute through lethal injection. So, while the study may find process to be lacking in every jurisdiction it has studied, it has not addressed whether the implementation of lethal injection warrants a nationwide moratorium of the death penalty.

I guess we'll have to wait for a more evenhanded report from the Supreme Court for that.

1 Comment

I thought this comment on Volokh was insightful: http://volokh.com/posts/1193617900.shtml#286043

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