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 6th 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.

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