The Death Penalty System Is Still Seriously Flawed

Walter McMillian was released from death row in 1993 after the state of Alabama admitted prosecutors had willfully withheld evidence of his innocence. He had been convicted of murder in a two-day trial seven years earlier. Although no physical evidence linked him to the crime, three witnesses, all of whom had received favors from the state for testifying, connected him to the murder. All three later said they lied on the stand. One said he was pressured by the prosecutors to implicate Mr. McMillian.

In another case, Leonel Herrera presented the United States Supreme Court with affidavits involving newly discovered evidence of his innocence and positive polygraph tests from a variety of witnesses, including an eyewitness to the murder and a former Texas state judge. Both said someone else had committed the crime. The Court, under the complex rules that govern habeas corpus appeals - the ancient writ that allows convicted defendants to challenge the legality of their convictions - said Mr. Herrera was not entitled to a new hearing on the evidence. He was executed on May 12, 1993.

These aren't isolated cases. Despite the high court's 1972 charge to the states to overhaul their death penalty laws to make them fairer and less arbitrary, innocent people are still being sentenced to death.

The American Bar Association recently showed its deep concern about the ways in which capital cases are handled. It adopted a resolution last February calling for a moratorium on the implementation of capital punishment until the procedures that are used conform to basic principles of fairness and reliability. The ABA resolution grew out of concern over troubling recent developments in three principal areas:

Inadequate counsel. Many jurisdictions have failed to establish the kind of legal services necessary to ensure that defendants charged with capital offenses receive an adequate defense. Many death penalty states have no working public defender systems, and many simply assign lawyers at random from a general list.

The defendant's life ends up entrusted to an underqualified, overburdened lawyer who may not have experience with criminal law at all, let alone with death penalty cases, which involve a complex body of constitutional law and unusual procedures that don't apply in other criminal cases.

In two recent cases, state trial judges assigned capital cases to lawyers who had passed the bar only a few months earlier. In others, lawyers who had never completed a criminal case, and even a third-year law student, were appointed.

In addition, appointed lawyers often are unable to conduct an adequate defense because they lack funds to pay investigators and expert witnesses. Many states cap lawyers' fees and investigative services at a fraction of the reasonable cost to discover and present crucial facts. Poor representation at trial increases the risk that innocent people will be unjustly convicted and compounds the waste of time and money in subsequent appeals and retrials.

Barriers to meaningful judicial review. The Supreme Court has erected numerous procedural barriers to inmates who claim their state death sentences were imposed in violation of the Constitution or federal law. Moreover, the last Congress enacted new restrictions to habeas corpus appeals, making it more likely that constitutional violations will go unremedied. Congress also eliminated critically needed organizations that provide expert advice and assistance to lawyers trying to cope with death sentence cases.

Failure to confront racial bias. Numerous studies and reports have confirmed that racial bias and poverty continue to play too great a role in determining who is sentenced to death. A report issued several years ago by the House Judiciary Committee documented that a white person's killer is far more likely to receive the death penalty than someone who kills a black person.

A former president of the ABA, John J. Curtin Jr., said it best when he told a congressional committee that "Whatever you think about the death penalty, a system that will take life must first give justice."

I am not opposed to capital punishment. But the serious flaws in our capital punishment justice system have not been addressed. Unless and until greater fairness and fundamental due process prevail in the administration of the death penalty, a moratorium on executions is appropriate. The system's failures pose a genuine threat to the liberties we all hold dear.

* Benjamin Civiletti is a former attorney general of the United States and past chair of the American Bar Association's Section of Litigation.

What can courts do about lawyers who are ineffective in capital cases?

Unfortunately, the legal standard for ineffective counsel used by the courts is so low that many lawyers whose incompetence has harmed their clients have not been deemed ineffective.

The American Bar Association (ABA) has criticized the standard and has urged that courts not only replace it but also consider constitutional claims that lawyers have negligently failed to present. However, the ABA has no power to sanction lawyers who are ineffective.

How much do death penalty cases cost taxpayers?

The Administrative Office of the US Courts 1992 estimate of cost per defendant was $337,500. Only a handful of cases have exceeded this. Most have been completed for much less.

Much of the high cost of death penalty cases is due to the complexity of these cases and the necessity of appointing two lawyers. The first Congress enacted this requirement for federal cases in 1790. It is the norm for state court death penalty representation as well.

Steps have been taken to limit costs. Last year, a new $125 statutory cap on the hourly rate for lawyers in death penalty cases went into effect, along with a $7,500 waivable limit on a presiding judge's authority to prove payments for investigators, experts, and other services.

Why did Timothy McVeigh's defense cost so much?

Although the $50 million estimated price tag cited in press reports for the Oklahoma City bombing case included prosecution, government, FBI, and defense costs, readers have misinterpreted the figure to be related only to defense. Likely defense costs, while high, are far lower than this rumored figure.