INDEX

The mainstream legal community, including the ABA, has long understood the importance of system-building, but the revised Guidelines state the point especially forcefully. In articulating “the current consensus about what is required to provide effective defense representation in capital cases,” they set high performance standards not just for lawyers, but for death penalty jurisdictions. As the problems are systemic, it is “imperative” that the solutions be.The Guidelines accordingly not only call on governments to deliver capital defense resources that are sufficient in amount, but also furnish the states with a user-friendly blueprint for using those resources wisely to create structures that will function well in the present and evolve effectively over time. This mandate for institution-building is welcome, and the states should lead it. Indeed, they must do so if the Guidelines are to achieve their ameliorative purposes and avoid becoming just a collection of lofty aspirations “‘that palter with us in a double sense, that keep the word of promise to our ear, and break it to our hope”.

• Document type Article
• Countries list United States
• Themes list Legal Representation,

This article gives insight into the different opinions held by the US and Europe in terms of the death penalty. The interplay between terrorism, the death penalty and extradition is also examined.

• Document type Article
• Themes list Extradition, Terrorism,

For the third time in a span of five years, a country has brought suit against the United States in the International Court of Justice (ICJ) for violations of the Vienna Convention on Consular Relations (VCCR) in capital cases. 1 And, for the third time, the ICJ has issued an order of provisional measures. The most recent order indicates that: “the United States shall take all measures necessary to ensure that [three named Mexican defendants] are not executed pending final judgment in these proceedings.” (Avena case)

• Document type Article
• Countries list Mexico
• Themes list Foreign Nationals,

The revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases require that an agency “independent of the judiciary” be responsible for “ensuring that each capital defendant in the jurisdiction receives high quality legal representation.” This independent agency “and not the judiciary or elected officials should select lawyers for specific cases.” These mandates reflect two realities that have become overwhelmingly clear: (1) judges—whether initially elected, subject to retention elections, or appointed—are subject to political pressures in connection with capital punishment cases; and (2) lawyers whom judges have appointed in capital punishment cases have frequently been of far lower quality than could have been selected.

• Document type Article
• Countries list United States
• Themes list Legal Representation,

The ABA has long been concerned with the provision of effective counsel for all criminal defendants, especially for those facing the death penalty. In 1989, the ABA first published its Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, which detailed the kind of competent, effective legal representation that all capital defendants were entitled to receive. Earlier this year, after a two-year effort drawing upon the expertise of a broad group ofdistinguished and experienced judges, lawyers, and academics, the ABA House of Delegates overwhelmingly approved revisions to those Guidelines to update and expand upon the obligations of death penalty jurisdictions to ensure due process of law and justice. “These Guidelines are not aspirational.” They articulate a national standard of care and the minimum that should be required in the defense of capital cases.

• Document type Article
• Countries list United States
• Themes list Legal Representation,

The thesis of this paper is that lawyers who have represented clients in capital murder cases at trial and appeal—not unlike all criminal trial and initial appeal counsel, but more urgently because of the circumstances—continue to owe important obligations to their former clients. These obligations have been just recently included in the latest version of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death PenaltyCases: In accordance with professional norms, all persons who are or have been members of the defense team have a continuing duty to safeguard the interests of the client and should cooperate fully with successor counsel. This duty includes, but is not limited to: A. maintaining the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation; B. providing the client’s files, as well as information regarding all aspects of the representation, to successor counsel; C. sharing potential further areas of legal and factual research with successor counsel; and D. cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel. It is my hope that this article will demonstrate that these Guidelines reflect not just best practice, but actual ethical mandates that trial counsel, like Bryan Saunders, owe their former clients as those clients negotiate the jurisprudential maze known as habeas corpus.

• Document type Article
• Countries list United States
• Themes list Legal Representation,

This article discusses the role of executive clemency in light of the current political environment. Attending to the political aspects of the capital litigation process gives insight into the trends in the use of executive clemency

• Document type Article
• Countries list United States
• Themes list Clemency,

Part I of this Article examines the evolution of victims from interested parties to participants giving sentencing recommendations. Part II examines the constitutionality of victim sentencing participation laws and explains why crime victims’ sentencing recommendations in capital cases are constitutional. In Part III, this Article shows how existing judicial procedures provide adequate constitutional safeguards. Finally, Part IV demonstrates how victims of capital homicide are harmed when the law denies them the ability to recommend sentences

• Document type Article
• Countries list United States
• Themes list Murder Victims' Families,

That the European area is a zone free of capital punishment is the result of a complex process of restraints that has evolved over the last 50 years. Domestic, regional and universal international law, as well as certain components within each level, have influenced each other to produce a dynamic, circular movement towards abolition. Starting from the internal level, restraints on the death penalty rose up to the regional and universal levels, and then descended back down into domestic law. This process, however, has not produced a completely closed circle, and certain countries in Europe retain legislation permitting recourse to the death penalty for certain crimes, especially war crimes and, according to recent interpretations, criminal offences related to terrorist activity. Extradition or other administrative mechanisms of expulsion also illustrate potential disjunctions in the circle, as they may allow persons to be transferred to retentionist countries. Even though the legislative framework has significantly evolved in the last few years, the dominant role played by political evaluations creates new fissures in the abolitionist circle. Only recently have new abolitionist perspectives emerged from the ‘right of interference’ in foreign death penalty cases, which some countries try to exercise when their own nationals are involved.

• Document type Article
• Themes list Networks,

Drawing from televised debates over capital punishment on CNN’s Crossfire from February 2000 to June 2002, I argue that Teles’s (1998) theory of “dissensus politics” is useful in understanding the U.S.’s preservation of capital punishment as well as current divisions in death penalty sentiment within the U.S. I pose the retention of capital punishment as the product of rival elites who are unwilling to forsake capital punishment’s moral character (and often the political benefits it offers), and who consequently ignore an American public that appears to have reached a measured consensus of doubt about the death penalty.

• Document type Article
• Countries list United States
• Themes list Public opinion, Public debate,