Death penalty. Death row lottery

At its mid-year meeting last month the American Bar Association (ABA) called for a moratorium on executions.

The ABA is not known for its opposition to capital punishment. But, as one New York attorney put it, it is important that “lawyers, those closest to the system, stand up and say it's in shambles”.

They are right. One striking example recently is the case of Joseph O'Dell, a Virginia death row inmate, on whose behalf the Supreme Court unusually interrupted its Christmas recess to intervene. On 16 December, 1996, a day before he was to hang, it blocked his execution.

US states have increasingly enacted life-without-parole laws. So prosecutors try to “win” death sentences by getting jurors to believe that the only way to keep a murderer off the streets is to execute him. In O'Dell's case the jury had not been told that he could have been sentenced to life imprisonment without parole instead of death. When oral arguments are heard later this year, the specific question in O'Dell v Netherland [95 F. 3d 1214 and 1996 WL 716301] will be whether a 1994 Supreme Court ruling in Simmons v South Carolina [512 US 154] should apply retrospectively to O'Dell, whose conviction and sentence became final in 1988.

Under that ruling, jurors must be told if a defendant is ineligible for parole when a prosecutor seeking the death penalty tries to establish how great a danger to society the defendant poses. That may not save O'Dell because in the 1989 case of Teague v Lane [489 US 288] it was held by the court that new rules of criminal procedure cannot be applied retroactively unless the new rule affects the fundamental fairness of a trial.

Yet the 4th Circuit ruling in O'Dell's case was only seven to six in favour of execution. Capital punishment in America is, therefore, in a complete mess. This is slowly being recognised. For example, in 1996 Justices Stevens and Breyer questioned for the first time whether it was constitutional to allow convicts to linger 10 years on death row before execution.

A new study by professors William Lofquist of the University of New York, Michael Radelet of the University of Florida and Hugo Bedau of Tufts University concludes that the wrong person is often convicted. Their results, to be published in the Cooley Law Review, reveal that 68 inmates have been released from death row since 1970 following doubts about their guilt. They conclude that the frequency of errors far exceeds the frequency with which we learn about them.

Capital punishment is now available in 38 US states and the federal system. Congress has recently streamlined the appeals process, speeding up the carrying out of executions.

The ABA objects to the execution of the mentally ill and those under 18. It has also warned about the disparate racial impact of the death penalty. But the organisation's main objection to the death penalty is that too many defending lawyers are unqualified. Thus, a third-year law student in Mississippi handled most of a capital trial. In Georgia, one defence attorney admitted he was high on drugs and ended up in the same prison as his client. One advocate offered no evidence before sentencing and simply told the jury: “You've got a man's life in your hands. You can take it or not. That's all I have to say.”

The ABA inveighs against this “haphazard maze of unfair practices”. However, it needs to take a more principled stand against the death penalty, as the UK has done.

In 1972, Thurgood Marshall, who sat on the US Supreme Court from 1967 to 1991, wrote a 60-page opinion in Furman v Georgia [408 U 238] arguing that the death penalty was, in all cases, barred under the 8th Amendment as “cruel and unusual punishment”.

Marshall wrote that if all the facts were known, “the average citizen would find it shocking to his conscience and sense of justice”. He observed that “the people of this country would care” if they learned that “it is only the poor, the ignorant, the racial minorities and the hapless in our society” who are executed “for no real reason other than to satisfy some vague notion of society's cry for vengeance.

“No matter how careful the courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some,” added Marshall.

In the UK, painful lessons have been learnt. Both the last woman, Ruth Ellis, and the last man, James Hanratty, were wrongly hanged. In the former case, a defence of diminished responsibility would have reduced the crime to manslaughter and in the latter,we now learn that the executed prisoner had not even committed the crime.

The problem with the death penalty is not inept lawyers but an inept penalty. Too much store is laid on retribution. As Marshall warns: “The concept of retribution is one of the most misunderstood in all our criminal jurisprudence” because “the fact that the state may seek retribution against those who have broken its laws does not mean that retribution may then become the state's sole end in punishing”.

Yet, the evidence shows that the state continues to seek retribution in circumstances when it clearly should not. There is ample support for Marshall's conclusion that “execution is nothing more than blood-lust”. The right thing for the ABA is to mobilise support for ending the death penalty in the US. It will not come too soon.