21 Pages Posted: 5 Nov 2004 Last revised: 5 Aug 2015
The revised edition of the ABA's "Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases" offers a lens through which to consider whether retention of capital punishment is sensible public policy.
A reader of the Guidelines finds that the current death penalty system is characterized by severely impaired clients, pervasive racism, a structural bias in favor of guilty verdicts, less effective counsel than in non-capital cases, and a dysfunctional system of post-conviction review.
No amount of money can solve these problems; at best, sufficient expenditures can ameliorate them. But making even that attempt will be costly - not just because of the amounts spent, but because those amounts are likely to be diverted from structural improvements that would produce tangible benefits to the criminal justice system as a whole.
As the states consider this situation, perhaps an unintended but welcome effect of the Guidelines' stark portrayal of the realities confronting them will be to prompt a re-consideration of the choice to have a death penalty at all.
Keywords: Capital Punishment, Death Penalty, Indigent Representation, Effective Representation, ABA Capital Defense Guidelines
Suggested Citation: Suggested Citation
Freedman, Eric M., Mend it or End it?: The Revised Aba Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty. 2 Ohio St. J. Cr. L. 663 (2005); Hofstra Univ. Legal Studies Research Paper No. 04-15. Available at SSRN: https://ssrn.com/abstract=614546