NEW VOICES: Former Tennessee Attorney General and Federal Judge Cite Crisis in State’s Death Penalty

A for­mer Tennessee Attorney General, W.J. Cody, and a U.S. Court of Appeals Judge, Gilbert Merritt, both mem­bers of the American Bar Association’s Tennessee Death Penalty Assessment Team, called on pol­i­cy­mak­ers to thor­ough­ly review the state’s cap­i­tal pun­ish­ment laws and imple­ment sig­nif­i­cant changes that address con­cerns such as wrong­ful con­vic­tions, meet­ing the needs of vic­tims’ fam­i­ly mem­bers, and ensur­ing that the state com­plies with min­i­mum stan­dards required for fair­ness in cap­i­tal tri­als. According to Cody, who also served as a U.S. Attorney, and Judge Merritt of the Sixth Circuit, who also served as a U.S. Attorney, the ABA assess­ment report issued by the Tennessee team in April 2007 detailed prob­lems that are faced by many juris­dic­tions through­out the nation and that the task of address­ing these con­cerns ​“can­not be tak­en light­ly.“

Cody stat­ed ​“It is clear that the cur­rent sys­tem is not work­ing”:

In my for­mer roles as the attor­ney gen­er­al for the state of Tennessee and a United States attor­ney, I have made deci­sions affect­ing the life and lib­er­ty of our fel­low cit­i­zens.

Once I took the oath of office for those posi­tions, I attempt­ed to fol­low the law, irre­spec­tive of my per­son­al feel­ings. But over the past 5 years, sev­er­al events have caused me to have doubts about the fair­ness and reli­a­bil­i­ty of the admin­is­tra­tion of the death penal­ty in Tennessee and to join togeth­er with oth­ers to look for ways to improve it.

Most recent­ly, I served on the American Bar Association’s Tennessee Death Penalty Assessment Team, which con­duct­ed a three-year study of the death penal­ty in Tennessee. In a report issued in April of this year, the com­mit­tee found that Tennessee fails to com­ply with most of the nation­al­ly rec­og­nized stan­dards required for a fair and accu­rate death penal­ty sys­tem.

Many of these short­com­ings are sub­stan­tial and seri­ous. They illus­trate the need for a mean­ing­ful and com­pre­hen­sive review to ascer­tain how to improve the fair­ness and accu­ra­cy of the Tennessee cap­i­tal pun­ish­ment sys­tem.

Fortunately, the General Assembly has leg­isla­tive­ly man­dat­ed a study of our state’s death penal­ty. The Committee to Study the Administration of the Death Penalty is charged with issu­ing ​“rec­om­men­da­tions designed to make cap­i­tal pun­ish­ment in Tennessee uni­form in its appli­ca­tion and admin­is­tra­tion so that the cap­i­tal process is free from bias and error.” The bipar­ti­san com­mit­tee is com­posed of leg­is­la­tors, rep­re­sen­ta­tives of the gov­er­nor, dis­trict attor­neys, crim­i­nal defense lawyers and experts from var­i­ous asso­ci­a­tions who are stake­hold­ers in the crim­i­nal jus­tice sys­tem. With this com­mit­tee, Tennessee has a great oppor­tu­ni­ty to address the seri­ous flaws of its cap­i­tal pun­ish­ment sys­tem.

This is no small order, and can­not be tak­en light­ly. Tennessee is not alone in its need to under­take a study of this breadth and depth. Other reviews have been con­duct­ed on the state and nation­al lev­els, and we have good exam­ples to learn from.

It is clear that the cur­rent sys­tem is not work­ing — not for vic­tims’ fam­i­lies who wait decades for clo­sure, not for defen­dants whose lives are at stake in an imper­fect sys­tem, and not for soci­ety at large. It is in every­one’s best inter­est that Tennessee move toward a more fair and accu­rate sys­tem. If the work of the com­mit­tee is open, detailed and broad in scope, as it should be, it could lead to real improve­ments in the fair­ness and reli­a­bil­i­ty of the death penal­ty sys­tem. In a soci­ety of laws gov­ern­ing issues of life and death, an improved sys­tem is imper­a­tive if we are to be true to Tennessee’s ideals of jus­tice.

Judge Gilbert not­ed ​“The admin­is­tra­tion of the death penal­ty nation­wide remains bro­ken and arbi­trary, and that seems par­tic­u­lar­ly true in Tennessee”:

For over 30 years, I have served the United States and Tennessee. As a judge on the United States Court of Appeals for the 6^th Circuit and a United States attor­ney for the Middle District of Tennessee, I reviewed many death penal­ty cas­es and have made it a point to study death penal­ty law.

I served as a mem­ber of the American Bar Association’s Tennessee Assessment Team, which issued a report ear­li­er this year assess­ing Tennessee’s death penal­ty sys­tem.

Recent death penal­ty cas­es from Tennessee show a con­tin­ued decline in the accu­ra­cy and fair­ness of the state’s cap­i­tal pun­ish­ment sys­tem. The admin­is­tra­tion of the death penal­ty nation­wide remains bro­ken and arbi­trary, and that seems par­tic­u­lar­ly true in Tennessee. Some who have been con­demned to death are, in fact, inno­cent of the crime charged. There is a con­sis­tent pat­tern of inef­fec­tive assis­tance of defense coun­sel, pros­e­cu­to­r­i­al mis­con­duct and oth­er seri­ous con­sti­tu­tion­al errors.

Addressing a crit­i­cal prob­lem

The judi­cial admin­is­tra­tion of the death penal­ty is by far the most dif­fi­cult, time-con­sum­ing, frus­trat­ing, and crit­i­cal joint prob­lem that the Tennessee and fed­er­al judi­cia­ry have to grap­ple with on a dai­ly basis. Our cur­rent sys­tem con­sumes enor­mous pub­lic resources, involv­ing many years of sus­tained work by state pros­e­cu­tors, state defend­ers, state judges, fed­er­al defend­ers and fed­er­al judges.

Unfortunately, until now nei­ther the Tennessee General Assembly, the judi­cia­ry, nor the gov­er­nor’s office has tak­en any seri­ous steps toward cor­rect­ing obvi­ous prob­lems.

Perhaps this will change. The General Assembly has com­mis­sioned a study com­mit­tee to seri­ous­ly exam­ine cap­i­tal pun­ish­ment in Tennessee. When the Committee to Study the Administration of the Death Penalty con­venes lat­er this month, it will be charged with a thor­ough exam­i­na­tion of the death penal­ty and its admin­is­tra­tion and, in the end, offer rec­om­men­da­tions for change.

Of course, study­ing Tennessee’s death penal­ty admin­is­tra­tion process is not new. The report from the ABA Assessment Team found that Tennessee’s sys­tem fails to meet a major­i­ty of nation­al­ly rec­og­nized stan­dards. In 2002, anoth­er dis­tin­guished com­mit­tee of the Tennessee Bar Association was appoint­ed to exam­ine issues sur­round­ing the effec­tive assis­tance of defense coun­sel in Tennessee cap­i­tal cas­es. The com­mit­tee also found that ​“Tennessee is woe­ful­ly out of step with the nation­al (American Bar Association) stan­dards” in death cas­es.

Effective assis­tance of coun­sel is nei­ther uni­form­ly nor con­sis­tent­ly pro­vid­ed to indi­vid­u­als fac­ing the death penal­ty in this state. Concerns over bud­get have often trumped the need for com­pe­tent, well-com­pen­sat­ed and ade­quate­ly pre­pared coun­sel.

If Tennessee is to have a fair and accu­rate death penal­ty sys­tem, then the sys­tem must be changed in a num­ber of respects. The leg­isla­tive­ly cre­at­ed Committee to Study the Administration of the Death Penalty offers some hope that our state might be tak­ing the first step toward need­ed reform.
(The Tennessean, October 5 & 15, 2007). See Studies, Innocence, Costs, Victims, Representation, and New Voices.