"Whatever you think about the death penalty, a system that will take life must first give justice."
– John J. Curtin, Jr., a former BBA President testifying before Congress as President of the American Bar Association.
Today, the country’s capital punishment system in state and federal courts fails to live up to this ideal. The BBA now, as then, recognizes that capital punishment is simply too fraught with peril—too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time consuming—to deserve support.
The BBA and the Death Penalty
The BBA has reaffirmed its longstanding opposition to capital punishment with its recent report, The BBA and the Death Penalty. The BBA's position rests on the principled judgment that the death penalty is fundamentally inconsistent with the fair administration of our system of justice.
For more than four decades, in amicus briefs, testimony before the legislature, and public statements, the BBA has sought to bring evidence to the emotionally charged death penalty debate. The BBA’s leaders have consistently pointed out what the data show about the death penalty:
- that the inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
- that, in practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
- that death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.
Attorney Martin F. Murphy and Retired Superior Court Judge Margaret Hinkle, co-chairs of the BBA Death Penalty Working Group address the BBA Council regarding their study “The BBA and the Death Penalty.”
Death Penalty Working Group
Martin F. Murphy, Foley Hoag, LLP
Honorable Margaret Hinkle, Superior Court Judge (ret)
Georgia Critsley, General Counsel, MA Department of Criminal Justice Information Services
Honorable Wendie Gershengorn, Superior Court Judge (ret)
Emily F. Hodge, Choate Hall & Stewart, LLP
David Solet, Middlesex District Attorney
Kathy Weinman, Collora LLP
In the 40 years since the BBA filed its first death penalty amicus brief, more than 143 wrongfully convicted defendants on death row have been exonerated
Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts
This 2009 report of the Boston Bar Association Task Force To Prevent Wrongful Convictions examines the risks of wrongful convictions and identifies reforms needed to reduce these risks. The report identifies the six most common sources of wrongful convictions as:
- Mistaken eyewitness identification
- Flawed forensic science
- False confessions
- Police and prosecution failures to produce required discovery
- Inadequate defense counsel performance; and
- False testimony by jailhouse informants and cooperating witnesses.
The Task Force also developed many specific recommendations concerning the way police should conduct identification procedures, the procedure of enforcement interviews of suspects and witnesses, post-conviction relief and forensic science, and standards of discovery, trial practice, and defense.
Disparate Racial Impact
By numerous metrics, the death penalty has an overwhelmingly negative effect on racial minorities.
Exorbitant Costs and Delays
Death penalty cases take longer and cost more than any other forms of justice
The Federal Death Penalty
The Federal Death Penalty Act of 1994 permits the federal government to impose death sentences for approximately 50 federal crimes including many cases historically prosecuted in state court by state prosecutors
- Massachusetts legislature’s rejection of the death penalty only keeps it out of our state courts. Since 1975, the BBA has contributed to the defeat of over 10 legislative proposals to reinstate capital punishment in the Commonwealth, including testifying in person at least 8 times (see examples here and here). The BBA has also worked with other organizations to support resolutions and initiatives that oppose the death penalty in Massachusetts.
- Since 1994, the Department of Justice has sought the death penalty in 3 Massachusetts cases – none of which have yet resulted in executions.
- The same factors in opposing the death penalty in state courts also apply to federal courts – wrongful convictions abound, there is rampant racial disparity, and the costs are astronomical.
Consequences for the Bar
The epilogue to the BBA’s amicus brief in the Colon-Cruz case details the fiscal, emotional, and professional impacts of death penalty cases on the Bar.
Issue Spot Blog Posts
- Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private Bar, especially through pro bono contributions. It is unfair to impose the extraordinary burden of capital defense, often 8-10 years of complex litigation, on only a small segment of the Bar and life is too precious to be left to the defense of underpaid volunteers.
- The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the burdensome length and complexity of cases, defense lawyers are torn between close relationships with their client and wanting to distance themselves in case of a death sentence. In addition, prosecutors and defense counsel alike face unique community pressures.
- Death’s severity as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the Bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.
Breaking Down the Facts …False Confessions, Flawed Science, Exonerations, Disparate Racial Impacts, Exorbitant Costs and Delays
- “The Interview” – A December 2013 New Yorker article examining whether interrogation techniques produce false results.
- NPR article and audio on interrogations
- Innocence Project database on false confessions
Flawed Forensic Science
Exonerations – The Ultimate Proof of Wrongful Convictions
Costs and Delays
The BBA has submitted amicus briefs in 3 death penalty cases, none of which resulted in capital punishment.
2005 - The Boston Bar Association filed an amicus brief in In re U.S., 426 F. 3d 1 (1st Cir. 2005), a government mandamus petition arising out of United States v. Green , 02-CR-1030-NG. The BBA’s brief addressed the United States District Court’s jury selection process, arguing that it was particularly important not to exclude African-Americans from jury service in death penalty cases.
1984 - The Boston Bar Association filed an amicus brief in Commonwealth v. Abimael Colon-Cruz, Jose Colon and Miguel Angel Rosado, challenging the constitutionality of the 1982 amendment to Article 26 of the Massachusetts Constitution. The brief also argued that the death penalty imposed “devastating burdens on the Bar.” Council minutes do not reflect the actual Council vote.
The Massachusetts SJC invalidated the 1982 Constitutional Amendment in the case of Commonwealth v. Colon-Cruz.
1975 – The Boston Bar Association filed an amicus brief in Commonwealth v. O’Neal, a case regarding the constitutionality of mandatory death penalty for murder committed in the course of rape or attempted rape. The brief argues that the death penalty is not an effective crime deterrent for a rapist-murderer because such a defendant would not consider variations in punishments given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s argument against the death penalty – the possibility of mistake, the disparate impact on minorities, the massive expenses, and the fact that the death penalty is degrading and destructive to society. The court overturned the state’s unconstitutional mandatory death penalty provision.
- Carol S. Steiker and Jordan M. Steiker, No More Tinkering: The American Law, Institute and the Death Penalty Provisions of the Model Penal Code, 89 Tex. L. Rev. 354 (2010)
- The Federal Death Penalty System: A Statistical Survey (1988-2000)
- The Federal Death Penalty System: Supplementary Data, Analysis, and Revised Protocols for Capital Case Review, United States Department of Justice, June 6, 2001
- Federal Death Penalty Resource Counsel
- John B. Gould and Lisa Greenman, Report to the Committee on Defender Services, Judicial Conference of the United States, Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases (Sept. 2010)
- John P. Martin, Bill for Savage Trial Easily Tops $10 Million, Philadelphia Inquirer, September 23, 2013
Issue Spot Blog Posts