DALLAS — In the history of American law, few issues have proved more contentious than capital punishment. Since its reinstatement by the US Supreme Court in 1972, its merits have been the subject of impassioned debates at capitol buildings and prisons nationwide.
Lately, however, advocates of the death penalty have made significant headway. Buoyed by rising public concern about violent crime and a political climate that seems to forbid politicians from appearing lenient, Congress and many state legislatures have widened the number of offenses that carry this penalty and passed laws designed to shorten the appeals process.
On Monday, however, the American Bar Association's House of Delegates, meeting in San Antonio, voted by more than a 2-to-1 margin to support a resolution calling for an immediate halt to executions until many of these laws can be revamped. The vote means that the ABA can begin lobbying to change laws it deems unfair.
A call to arms?
To some observers, the surprisingly strong condemnation by the ABA's policy arm represents the first volley of an inevitable battle for public opinion.
"We have gotten ourselves into a situation where something has got to happen," says Derral Cheatwood, a professor of criminal justice at the University of Texas at San Antonio. "We've gotten ourselves into a quagmire by putting more people on death row."
According to Dr. Cheatwood, about 3,000 inmates are on death row in the United States. Yet never before in modern times, he says, have more than 200 people been executed in any given year. Even if the total number of executions rose to 300 a year, he notes, it would still take 10 years to work through the backlog - not counting the new death-penalty sentences that would continue to pour in.
"It's a paradox," he says. "If we execute 300 people a year, we can expect citizen groups to begin to react more strongly [against use of the death penalty]. If we don't, then we're not meeting our commitments, and we're adding to a backlog that will increase every year."
Despite its stern rebuke of current practices regarding capital cases, the ABA's resolution shied away from attacking the death penalty on principle. In a report, ABA researchers hit on some well-worn themes of capital- punishment opponents: that current procedures discriminate unfairly against minorities, and that too often, the seriousness of the offense in a capital case becomes secondary to the quality of legal counsel a defendant is able to secure.
The report also criticized recent federal laws that limit the power of federal courts to review capital cases from state courts and that end US funding for lawyers helping death-row inmates pursue appeals.
Taking on lawmakers across the US
In previous meetings, the ABA has urged lawmakers to ensure that all capital defendants have competent lawyers, that federal courts can review state prosecutions, that the problem of racial discrimination be addressed, and that no minors or mentally handicapped people be put to death.
"Not only have the ABA's existing policies generally not been implemented," the report says, "but ... federal and state governments have been moving in a direction contrary to these policies."
The ABA's action flies in the face of the Clinton administration, which has advocated capital punishment and is poised to become the first ever to seek the death penalty against a defendant in a federal trial. Deputy Attorney General Jamie Gorelick, speaking against the moratorium before the vote, argued that it could complicate the case against defendants in the Oklahoma City bombing trial.