Death Penalty Moratorium In Alabama? Critical ABA Panel Says Yes

Sunday, the ABA issued the Alabama Death Penalty Assessment Report, an extensive study of the state’s capital punishment system. The report was prepared by a team of Alabama lawyers that included a sitting DA, a former federal magistrate judge, a state legislator, a former president of the Alabama State Bar, and several lawyers in private practice. (I chaired the team.) It was critical of many aspects of the state’s death scheme including the quality and scope of indigent defense counsel, inadequate proportionality review, a failure to address serious juror confusion about legal standards, and the ability of judges to override jury imposed life sentences. The committee (with one dissent – the sitting district attorney) called for the state to adopt a moratorium on the death penalty pending significant improvements in the state’s system. The executive summary is here; the complete 265 page report is here. An op-ed I co-authored with Michael Greco, the ABA President, is here.

I plan to blog about different aspects of the assessment over the course of this week. Suffice to say, as a starting point, that the study contains a good deal of bad news about the fairness of the state’s scheme. One of the most troubling things that surfaced in our work was the fact that the state’s capital system has eluded serious study for so long. Unlike some other states, few individuals or organizations have conducted extensive research on it. The state engages in fairly limited data collection as well. As a consequence, we were somewhat limited in our ability to provide a complete snapshot of the system.

In many respects. this report is best designed to start – rather than end – serious scrutiny of capital punishment in Alabama. Among other things, the assessment compiles a host of details about the state’s capital punishment laws and procedures. We hope that this compilation will not only assist researchers and policymakers, but criminal lawyers as well.

UPDATE: I will try to link my subsquent posts here. Tuesday’s related posts are here and here. Wednesday’s related post is here.

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16 Responses

  1. Orin Kerr says:


    In looking over the bios of the members of the ABA group that you chaired, it seems that almost everyone is a current or former defense attorney. Indeed, as I read the bios, it seems to me that the only person on the team with any prosecution experience is the sitting DA, who apparently dissented from the key recommendation.

    Two questions. First, am I right about the bios? And second, if I am right, was this defense-focus just a coincidence, or was it by design?

  2. On a related note, what are the prospects of getting any sitting DA (in just about any state) to recommend a death penalty moratorium?

  3. A. Plant says:

    Great questions, Prof. Kerr. Although all of the folks on the panel are, in my experience, very fair-minded, I’m more than a little bothered that an important constituency that deals regularly with capital litigation work–state prosecutors–was underrepresented. Even if this was purely coincidental, the composition of the panel makes a charge of bias almost guaranteed, and diminishes the hard work the panel has done regarding a very complex, and very thorny, issue facing the legal system in Alabama.

    On a note realated to Michael Risch’s related note, what are the prospects of getting a criminal defense attorney (or a lawyer who opposes capital punishment generally) NOT to recommend a moratorium? I would hope that the answer to both our questions would be “very good, if the evidence supports the conclusion,” but that’s just hope.

  4. Jason Solomon says:


    Congratulations on what looks like a thorough and thoughtful report. Chairing that must have been a ton of work — which doesn’t “get you anything” in particular in the academy — but which is no doubt a great service to the profession and to the criminal justice system in Alabama. Look forward to hearing more about it in your future posts.

    Orin, I take it your position is that the administration of the death penalty in Alabama is just fine. Five death row exonerations in 13 years — the system’s working. 54% of Alabama capital jurors incorrectly thought they couldn’t consider mitigating evidence on death sentence; that’s barely a majority. Minimal and underenforced qualifications required for capital defense lawyers — not a big deal. Saying that these things are a problem must be the sign of a hopelessly biased task force. I guess I don’t know enough to evaluate the merits of such an argument, but I’m skeptical.

    The “key recommendation” you’re referring to that the DA dissented from is just what to do in the interim — temporary moratorium or not — until the system can be improved; I take it there was consensus on most of the substantive reccs on how to improve the system.

  5. Orin Kerr says:


    Much like at PrawfsBlawg, you have dismissed my question by replacing it with a straw man; you then respond to the straw man rather than my actual question. Here, you take my question about the composition of the ABA group to be some sort of vieled suggestion that (in your words) “the administration of the death penalty in Alabama is just fine.”

    I certainly don’t believe that, and I honestly can’t fathom why you would think I do. I am currently working on a capital defense case from Mississippi pro bono involving an extraordinary injustice; if the Alabama and Missisippi systems are similar, the system is clearly “not fine.”

    But I don’t know what this has to do with the composition of the ABA group that wrote the report, which was the subject of my questions. If you would like to respond to the questions I asked, that would be great.

  6. Jason Solomon says:


    I stand corrected on your views on Alabama’s system — good to hear — and good luck with your pro bono case. Was just puzzled why you were calling the task force biased. But I’ll let Dan defend his task force if he wants. Might be better to focus on substance.

    Think you missed my point on Prawfs, but that’s OK. Maybe we just disagree.

  7. Orin Kerr says:


    I’m interested in the makeup of the ABA task force because the ABA has in the past taken strong positions against the death penalty — I believe the ABA adopted a death penalty moratorium resolution in February 1997 — and I suspect those strong positions have an impact on its work and how it is perceived. I was interested in knowing whether this task force was considered within the ABA to be a part of that work, or whether it was designed to be distinct from it.

  8. Dan Filler says:

    Orin – You are correct that several people on the committee either do, or have done, criminal defense work. The only design we had was to make sure that we had at least one criminal defense lawyer (Richard Jaffe), one prosecutor (Arthur Green), one judge (Judge Carroll, now dean at Cumberland Law School), one legislator (Senator Sanders), and one former or current state bar president (Bill Clark.) We also added a couple of hard-working junior attorneys from big firms to assist with our efforts. As it happens, finding ANY prosecutor was not a simple task. This study was organized by the ABA, a group that Attorney General Troy King called “a liberal, activist organization with agendas they always push.” As a consequence, prosecutors worried that the assessment might result in recommendation of a moratorium. Taking such a position is virtually untenable for any elected DA in the state and even being on a committee reaching that conclusion is quite unattractive. (Indeed, several high-profile death penalty supporters who provided substantial assistance on the report actually asked that their names not be included in the acknowledgements.) I will tell you, however, that until the final meeting on the report, I was not at all certain that the committee would recommend a moratorium – and the ABA never asked us to issue such a recommendation.

    You say that the one DA dissented from the key recommendation. Actually, he dissented from two recommendations (the moratorium and elimination of judicial override of jury imposed life sentences.) But other than that, he and every other committee member signed on to the rest of the recommendations calling for: an overhaul of defense services, the right to defense counsel in state collateral challenges, new laws requiring preservation of biological material and allowing defendants to test that material post-conviction, a law defining mental retardation, improvements in proportionality review, new guidelines for use of the “heinous, atrocious and cruel” aggravator, replacing the requirement of 10 jurors with unanymity, and new approaches to self-evaluation and data collection around the death penalty. And perhaps more importantly, although we didn’t vote point by point on this, everyone generally agreed on to the body of the report which found massive problems in the state’s death penalty system.

    I urge you to look at the report and decide for yourself whether there really are problems with the state’s death penalty system, and – if you think there are – whether they are consequential. I can promise you that people of good will worked hard to present a fair assessment of Alabama’s death penalty.

    I take it that Jason’s comments reflected a general concern that critics of the report would choose to go after proxies for its accuracy and fairness – Troy King, for example, chose the ABA – rather than engaging the work itself. Dan

  9. Dan Filler says:

    Orin – I read your last comment after I posted my own. This task force was essentially designed to be an independent committee assigned the job of evaluating the death penalty under criteria that had been previously generated by the ABA. Dan

  10. Kate Litvak says:

    Another story of a boy who cried wolf… If an organization is known for strong political biases, it cannot simply appoint a committee, claim that committee to be “independent,” and then demand that people take the work of that committee seriously. Everything about that committee will be suspect – from its observable features, like composition and methodology, to the less unobservable, like data-collection and coding processes, to the completely hidden, like the findings that did not get reported.

    The fact that most DA’s turned down the opportunity to participate is a very, very bad sign. The political makeup of “hard-working junior attorneys from big firms” is highly suspect. The participation of a politician and of a former state bar official is a rather poor sign of neutrality.

    There is a good reason why “studies” organized by insurance companies, labor unions, the pharma industry, or the plaintiffs’ bar are not taken seriously. That’s how it works with reputation – you can’t get rid of it by simply opening a subsidiary corp.

  11. KissMeKate says:

    Wow, I would have thought that Kate Litvak would be in favor of a free market in scientific studies. I guess reputations aren’t always reliable proxies.

    The ABA report might contain justifiable criticisms even though the ABA would call for a moratorium on the Alabamian death penalty regime in the absence of facts that justified criticizing it. Therefore, the ABA report, if read, should be considered fairly. That’s how it works with ignorance — you can’t get rid of it by simply begging the question.

  12. Humble Law Student says:

    To make the point a different way, has an ABA panel in the past 5-10 years ever recommended keeping the death penalty? I’d doubt it…

  13. Sherrie says:

    My father is currently on death row in Alabama & will probably be executed by the first of 2007. He has been denied DNA testing, and a multitude of other items. He neglected to file an appeal on time. There was no attorney or even a law library at the prison where perhaps he could of filed it. The State of Alabama does not even guarantee a death row inmate right to an attorney in these final stages of execution.. There were a couple of appointed attorneys in the beginning who were paid nothing, and have no experience. Now some attorney in New York, with no experience and a serious communication issue is doing 0 to help him. The only way the State of Alabama is going to change is when a surviving family member steps in and sues them for wrongful death. Every American deserves the right to a fair legal procedure with competent attorneys. I just found your article today. It is interesting. I thought a death row inmates daughters view might be of some interest to some of your critics. If we are going to have the death penalty, should’nt the accused be entitled to a real competent attorney with death row murder experience, the amount be raised to compensate a experienced attorney? Seems if the State would provide competent experienced lawyers and the funds to compensate them, they would save millions of tax payers money in the long run. Should’nt a condememd man or woman in the State of Alabama be entitled to legal representation in the final stages of execution? Of course if the State did all that and changed the laws to be on a fair playing field, the public would find out some of these people may be innocent. I find it interesting there is no statue of limitations on conviction of murder, but there is a statue of limitation on proving your innocence….Not filing an appeal on time, with no attorney or access to a law library. When my father is executed under these circumstances, I promise, the State of Alabama will make some changes.



  14. Beth says:

    I have a few thoughts as the victims family-Left behind.Our Mom was murdered by a man that now sets on deathrow in Alabama-It will be 21 years this March since he beat,stabbed & strangled our Mom.He Was apprehened a year later for the murders of 3 young ladies & two children that he murdered all in about an hour one night.Their were others before our Mom & several others after.My Mom was here today and gone tonight -He was sentenced to death 20 years ago for the other Murders he committed and will never be tryed for our Moms-So as a family left behind-He will never be tried for murdering our Mom-We will never have any answers for what we have endured-? But all and everything I read is about the rights of the Murders-What they get and what they don’t get.The state should not have to provide any legal rights to such cases.He was found guilty!!!Of 5 murders…….Its a waste of time and energy on everyones behalf.Why must the convicted (Murders)Get such special treatment?And plead for their lives-I wonder every waking minute?What My Mom was thinking?In the last minutes of her life the last breath she took as he had his hands around he neck. 57 years old-A whole life time ahead of her -So many more things we wanted to do-say-see.He has had 20 years to write books,form groups,sell his art work on the internet,many web sites,3 meals a day,roof over his head,medical treatment-lawyers? I wonder how many persons know what it is truly like to endur what we and so many others have had to.It is as though Our Mom has been forgotten by all involved-He will never in this Life time have to answer why he beat her?Why he stabbed her?why he strangled her?Why he went in that room?Why he used a 3 years olds social security number that night when arrested for stealing a pocket book after he murdered our Mom & let go the next day.Every waking minute I remember that Picture of our Mom-Laying on the floor were she was left.Their will never been justice-He will get a needle when the time comes!!!Just like you or I when we have a opperation peacefully to sleep!!!I guess I would not be a good canidate to talk to about the Death Penalty.After reading his Web sites-He seems to have all the answers -I wish as a family we could atleast be given a reason?Or have our Day with him-in court as others have.Think of someone that you are so close with-love-respect-any couldn’t live without.Get the phone call-And then be told he will never have to answer for what he has done to this person.To all that have traveled this road & journey My heart goes out to you in so many ways.To all of you that don’t think Death is just-may you never go through what we have as a family.

  15. Melvin says:

    I am strongly against such punishment, everyday of our lives the bible teaches us not to kill, people that kill should be punish, but what is the differance bewteen the person that kill, the person who commit the crime. There know real differ bewteen the two, let face it two wrong don’t make it right. I think we should look back into the family home and see what really happen, our local and state government should not go around killing as well. The death penalty just plan wrong.

  16. Ric says:

    I agree with both Beth and Melvin. This might sound crackers, but why not make the Death Penalty voluntary? Those who kill and have remorse are then humanely “allowed” to end it. Those who are innocent or incapable of remorse do not become “killed”. The innocent are spared and are not under the gun, so to speak, to obtain council under heinous mind racking pressures. Those pathologically unable to feel remorse are insane and the Death Penalty becomes merely a vehicle for vengeance. I would propose that the offender be allowed to press his own button, which takes the State and the Victims out of the vengeance loop, for their own sakes, removing any protests to the Death Penalty at large. Now, the truly guilty and -aware- can go out quickly without huge and expensive delays to the taxpayers to atone for their crime. The Anti-Death Penalty crowd could hardly protest the Offender ending his/her torment of being confined in a box, while suffering an immense load of grief, for 20+ years. No more candle-light vigils and the expensive politics and debates involved. I think that the meaning that Beth seeks is, “Is there remorse to be found in the person who killed my Mother?” Again, if not then that person is clearly insane. If so, why isn’t he dead as well? My proposal, with Beth in mind, is that the only gift the offender could make to atone is to acknowledge and be responsible for his actions by pressing his own button. Not her or the State. She is out of the vengeance loop, for her own mental health in the future, and could lay her grief down which I suggest is what she would want more than anything, other than having her Mother back and alive. Plus, as a society we are out of the “vengeance is mine” killing business and move towards being more humane, for the reasons Melvin notes and more. I hope that this bears consideration.