DEATH PENALTY CASES: ENSURING FAIRNESS WHILE REDUCING DELAYAuthor(s): ROBERT D. RAVENSource: ABA Journal, Vol. 74, No. 10 (OCTOBER 1, 1988), p. 8Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760129 .

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A Message From The President

DEATH PENALTY CASES: ENSURING

FAIRNESS WHILE REDUCING DELAY BY ROBERT D. RAVEN

As a nation and as a profes sion we must address the most crit ical issue facing our justice system: ensuring fairness while eliminating delay in the administration of the death penalty. Whether one opposes or supports capital punishment, as

lawyers we should agree that no one should be subjected to this ultimate sanction without the opportunity to challenge fully the justice of its im position.

Federal habeas review has been an important safeguard against in justice. Judge John C. Godbold, for

mer chief judge of the 11th Circuit the court which has heard the great est number of capital habeas ap peals reports that during his tenure, the court found serious constitu tional errors in fully one-half of the post-conviction reviews.

Some lawyers and jurists, how ever, have suggested that state and federal post-conviction review is sim ply too burdensome. As America's death row population increases, our entire justice system will feel the im pact of these complex, time-consum ing and emotionally draining cases. In Florida, the state with the largest death row population, observers es timate that the Florida Supreme Court spends one-third of its time on

post-conviction review. And the pic ture for the rest of the nation is equally troubling. One study has pre dicted that 300 new capital habeas cases will enter the federal system in the next year.

These new cases will be added to a system already burdened by delay. As former Justice Lewis F. Powell Jr. reported in his address to the Crimi nal Justice Section at the ABA An nual Meeting in Toronto, the period between the date of the crime and the execution averages eight to 10 years in most states. Justice Powell sug gested that "the time has come for Congress to give thoughtful consid eration to making reasonable changes in the federal law governing review of criminal convictions."

The ABA must participate in the evaluation of the current system of federal review. We are already work ing, through our Criminal Justice

Section, with the State Justice Insti tute to analyze special problems with federal habeas procedures. We also will offer our assistance to the new U.S. Judicial Conference committee chaired by Justice Powell that was

appointed recently by Chief Justice Rehnquist to study this issue.

The ABA must, however, con tinue to be a voice of caution. We cannot as a nation of laws sacrifice fairness and lives to expediency. Stripping away due process for those facing the most severe sanction our nation can impose will not solve the problem. We must ensure that efforts to eliminate delay do not compro

mise effective federal review. The ABA must also continue to

play a critically important role in providing legal representation. The ABA's Post-Conviction Death Pen alty Representation Project, since its establishment in 1986, has trained over 500 volunteer attorneys and provided 150 of them to handle death penalty cases. We need to continue and expand these efforts.

It is predicted that the rate at which death penalty judgments will become final will begin to increase rapidly. If it does, the shortfall of de fense counsel will become an even

more serious problem. We must en courage efforts such as the Project's

National Conference on Death Pen alty Resource Planning held last June, as well as more state resource centers such as those made possible by the work of the U.S. Judicial Conference.

Providing effective representa tion while eliminating unnecessary delay is not our only challenge. At the Toronto meeting, the ABA consid ered some disturbing statistics re

garding the race of the defendant or the victim in capital sentencing. Hav ing considered these statistics, the House of Delegates adopted a resolu tion supporting "enactment of fed eral and state legislation which strives to eliminate any racial discrimina tion in capital cases which may ex ist." While the explanation for these statistics may be disputed, there can be no dispute that they merit careful examination of whether there is dis crimination and, if so, how it may be eliminated.

Our goal must be that our court system provide fair treatment for all, without unnecessary delay, particu larly in matters of life and death. This is everyone's responsibility civil and corporate practitioners, as well as

judges, public defenders and the criminal defense bar. If we do not commit sufficient resources to meet this goal, our system of justice will fail. We cannot let that happen.

CALIFORNIA LAWYER/MAX RAMIREZ

President Raven, left, with John M. Greacen, immediate past chairperson of the ABA Criminal Justice Section, at San Quentin California State Prison,

which has custody of 215 persons under California sentence of death.

8 ABA JOURNAL / OCTOBER 1, 1988

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