February 9, 2003
SEATTLE -- Six years after urging a halt to executions, the American Bar Association is ready to issue states another challenge: fix shoddy defense systems for murder suspects.
The nation's largest lawyers' group is overhauling 14-year-old standards for capital defense lawyers in the face of criticism from Supreme Court justices and others about the quality of legal representation.
The ABA's policymaking board will vote early this week on a plan encouraging states, and in some places counties, that pay for the defenses of poor defendants to update their standards. Some governments follow the 1989 guidelines. Many others have no standards.
"In a lot of states all you need is a Bar card," said Lawrence Marshall, a Northwestern University law professor who spoke Saturday at the ABA's winter meeting in Seattle about "horror stories" of inept lawyers, including some who slept through parts of capital trials.
Among the recommendations are bolstering defense teams to include two lawyers, an investigator, a background specialist, and in some cases an expert to help with jury selection.
Supporters contend that changes will help defense teams compete against often better-paid and equipped prosecutors.
Critics say cash-strapped states cannot afford to do more.
Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation said the ABA is pushing extravagant and unnecessary expenses.
"They want to say that if you don't provide the gold standard in defense, then you can't have the death penalty. And that is the real agenda," he said.
The ABA has been criticized by some as being too liberal for taking stands such as its February 1997 recommendation that states put a moratorium on executions because of concerns the punishment was not fair.
In 2000, Illinois Gov. George Ryan halted executions in the state and last month, before leaving office, commuted 167 death sentences. Ryan cited concerns about trials, sentencing, the appeals process and what he called the state's "spectacular failure" to reform the system.
New Gov. Rod Blagojevich has said he will continue the freeze, but he has no plans to commute more sentences.
In Maryland, Gov. Parris Glendening last year stopped executions to give lawmakers the chance to analyze the results of a two-year University of Maryland study on the use of the state's death penalty.
That recent study found that race and jurisdiction play significant roles in whether a criminal is sentenced to death in Maryland. Glendening's successor, Robert Ehrlich, has said he will not continue the freeze on the death penalty. The state's attorney general, J. Joseph Curran Jr., last month said Maryland should abolish capital punishment, noting systemic flaws and the possibility innocent people could be put to death.
Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg publicly questioned the quality of death penalty lawyers in 2001, and the court will hear arguments in March in a bad lawyering case.
The justices will consider whether the appointed lawyers of a Maryland man did enough to collect sympathetic evidence for jurors considering his fate. The case turns on the man's rights under the Constitution's Sixth Amendment, which guarantees defendants a lawyer.
The ABA has filed a brief in that case, supporting the death row inmate.
In the meantime, the 400,000-member association is hoping states will be willing to voluntarily make changes, some potentially costly and others not. The group has not estimated the cost.
When the ABA wrote the last guidelines in 1989, about 2,000 people were on death row. Now there are nearly 3,700.
"It's clearly a bigger crisis," said New York lawyer Ron Tabak, an architect of the proposed changes. "Everybody, from the Supreme Court on down, has said everything should be done to get things right."
The previous guidelines recommended two defense lawyers, but not "defense teams." They also did not address specific standards for good lawyers.
The ABA wants better investigations and records of complaints about inadequate lawyers and definitions for the needed skills for death penalty counsel.
Lawyers would be instructed to thoroughly look into defendants' backgrounds and screen them for mental illness.
The guidelines should apply to federal trials, including tribunals, the ABA contends.