ABA sets out (incomplete) case against the modern administration of the death penalty

According to this Chicago Tribune article, the America Bar Association’s Death Penalty Moratorium Implementation Project has, after “concluding its three-year study of capital punishment systems in eight states,” discovered “so many inequities and shortfalls that the group is calling for a nationwide moratorium on executions.”  I wonder if I will be the first to say that I am shocked — shocked — to learn that the ABA’s Moratorium Project has now come to the shocking — shocking — conclusion that there should be a death penalty moratorium.  (In somewhat related news, the latest issue of the ABA’s Human Rights magazine is dedicated to the death penalty, and all the articles appear to advocate against this punishment.)

In all seriousness, the ABA’s moratorium research project has provided a thorough account of the operation of the death penalty in eight states: Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.  And, though I suspect few working on this project are genuinely interested in creating a more effective and efficient system of capital punishment in the United States, the ABA deserves great praise for contributing an extraordinary amount of information and insight about the modern operation of capital justice systems and for making sounds suggestions about how capital justice might be improved.   And yet, there is a troublesome incompleteness in all of the ABA’s copious work. 

First, consider the many notable jurisdictions left out of the ABA’s research.  California has a death row nearly twice as large as any other state, and yet its capital system has not been subject to the ABA’s analysis.  Even more glaring, the four states that have executed the largest number of defendants in the modern era — Texas, Virginia, Oklahoma and Missouri — also escaped the ABA’s scrutiny.  Indeed, by also leaving out North Carolina, South Carolina, Arkansas and Louisiana, the ABA failed to examine the states responsible for roughly 3/4 of all executions in the last 30 years.  Any assessment of the death penalty that does not focus on Texas is like staging Hamlet without the prince, and the ABA has also left out Claudius, Gertrude, Horatio and Ophelia.

Second, consider key issues left out of the ABA’s work.  Somewhat comically, the issue that has now created a de facto moratorium — problematic execution protocols — is not examined at all by the ABA in this work.  Also, some issues that might be most important to persons undecided about the death penalty — debates over deterrence and cost realities — are not addressed in the ABA’s reports.  And, returning to a theme that I often stress, the ABA does not explore federal capital prosecutions or the broader idea of having the federal government take over administration of the death penalty.

In short, those persons wanting to feel good about their pre-existing opposition to the death penalty will enjoy reviewing the thousands of pages produced by the ABA’s research.  But someone who is genuinely agnostic about capital punishment is likely to find the ABA’s work more frustrating than enlightening.