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Ohio State Journal of Criminal Law

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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.



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