ABA: Extend Tennessee death penalty moratorium

In this earlier report on an investigation into the application of the death penalty around the South, we noted that Tennessee's death penalty came under fire when it was discovered that the procedure manual for lethal injection advises executioners to have fire extinguishers at the ready and has instructions to "engage the automatic rheostat" and afterwards to "disconnect electrical cables" before allowing a doctor to examine the inmate to determine if the lethal injection was successful.

Legal challenges which exposed these bizarre procedures prompted Tennessee Gov. Phil Bredesen to declare a moratorium on executions until a review of the state's lethal injection procedures could be conducted. The moratorium is set to expire on May 2nd.

Yesterday, the American Bar Association issued a finding of more serious problems and recommended that the moratorium be extended and that the review of Tennessee's death penalty should be expanded:

A team of Tennessee legal experts, working under the auspices of the American Bar Association Death Penalty Moratorium Implementation Project, today cited problems in the state's use of capital punishment that range from excessive caseloads and inadequate standards for defense counsel to racial disparities and inadequate review of death row inmates' claims of actual innocence.

The team concluded that Tennessee's death penalty system is so flawed that a temporary halt in executions should be continued to permit a thorough review of every aspect of capital punishment administration in the state. It urged Gov. Phil Bredesen to continue past May 2 a stay he initially imposed on Tennessee executions to examine protocols for administering lethal injection, the execution method used in the state.

"Gov. Bredesen clearly has given sober consideration to how executions are carried out in Tennessee," said American Bar Association President Karen J. Mathis. "Now it is time for him, and for the state as a whole, to devote even more thorough analysis to how the state reaches the decision to sentence someone to death. The families and friends of capital crime victims in Tennessee, the people accused of committing those crimes, and the citizens who place their trust in their legal system deserve better justice than they are now receiving," she said.

According to their press release, the ABA takes no position on the death penalty or the method of execution, but they "urge a moratorium on executions in each jurisdiction until fairness and due process are assured in death penalty cases."

Concluding a three-year study of Tennessee's death penalty according to ABA protocols for "a fair and accurate capital case system that complies with constitutional standards," legal experts found that "Tennessee meets only seven of the standards, partially meets 31 of them, and fails to comply with 26 of them." There was not enough information available to assess compliance with 29 of the protocols.

The report urges Tennessee to extend the moratorium and to expand the scope of its review of the death penalty and makes the following specific recommendations:

• Create an independent commission to review claims of factual innocence, with power to investigate, hold

• Create an independent statewide authority to appoint, train and monitor defense, appellate and post-conviction lawyers in capital cases

• Require preservation and storage of all biological evidence in capital cases as long as defendant remains incarcerated

• Develop statewide protocols to standardize decisions about which cases are charged as capital crimes

• Increase qualification standards and monitoring procedures for defense, appellate and post-conviction lawyers in capital cases

• Provide a right to post-conviction counsel before, not after, filing of post conviction petitions

• Amend court rules to allow defendants to obtain expert and investigative services at any time after being charged, providing an opportunity to demonstrate why a capital charge may be inappropriate

• Include in proportionality review cases in which the death penalty could have been sought but was not, and cases in which the penalty was sought but not imposed

• Require judges presiding over trials resulting in first degree murder convictions to file complete proportionality reports

• Assure each death row inmate an opportunity for a hearing before the Board of Pardon and Parole

• Redraft capital jury instructions to prevent misunderstandings

• Sponsor a state study to determine if there are disparities in capital sentencing based on race, socio-economic status, geography or other factors

• Exclude from eligibility for execution people with serious mental disorders

• Adopt a uniform state standard to determine defendants' competency through trial, appeals and post-conviction proceedings.

These findings and recommendations are similar to the findings of a recent three-part investigative report by the McClatchy Newspapers into dozens of death penalty cases around the South.

The ABA is studying the death penalty in eight states, including Georgia, Alabama, Florida, Arizona, Indiana, Tennessee, Ohio, and Pennsylvania. The full report on Tennessee is available here (PDF format). Reports that have been completed for other states can be accessed here.