More than a year after the American Bar Association over­whelm­ing­ly passed guide­lines to raise the qual­i­ty of defense coun­sel in death penal­ty cas­es, no state has adopt­ed the stan­dards and the ABA con­tin­ues to voice con­cern that tri­als are pro­ceed­ing under ​“a sys­tem that is des­per­ate­ly bro­ken.” Although the ABA does not take a posi­tion on cap­i­tal pun­ish­ment oth­er than their oppo­si­tion to exe­cut­ing juve­niles and those with men­tal retar­da­tion, the orga­ni­za­tion’s 2002 guide­lines delin­eate the respon­si­bil­i­ties of coun­sel and of states and the fed­er­al gov­ern­ment to indi­vid­u­als from the moment of arrest through, if nec­es­sary, clemen­cy pro­ceed­ings. Attorney com­pe­tence and attor­ney inde­pen­dence are key ele­ments of the guide­lines, as is the estab­lish­ment of an inde­pen­dent appoint­ing author­i­ty. The ABA, which has called for a mora­to­ri­um on exe­cu­tions until con­cerns about inno­cence and fair­ness are addressed, says that states should embrace the full pack­age of rec­om­men­da­tions in order to cor­rect cur­rent prob­lems and ensure accu­ra­cy. Some states have voiced con­cern over increased costs that may accom­pa­ny the reforms. ​“It’s tempt­ing to say some change is bet­ter than none, but it’s like try­ing to fix a bro­ken-down car with new tires. It would not bring about the over­haul of the cap­i­tal defense sys­tem that is urgent­ly need­ed,” said Robin Maher, direc­tor of the ABA Death Penalty Representation Project. (National Law Journal, January 5, 2004). See DPIC’s report With Justice for Few: The Growing Crisis in Death Penalty Representation.

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