Ohio State Journal of Criminal Law
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.
Eric M. Freedman,
Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty, 2 Ohio St. J. Crim. L. 663
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/135