President's Column: Calling for a Moratorium on Capital Prosecutions and Executons

Calling for a Moratorium on Capital Prosecutions and Executons

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Two important events occurred the last week of September, just as the Supreme Court was to begin this term. The first was a final report1 of a 30-month study by the American Bar Association on Ohio’s death penalty system, in which the study group found the state in full compliance with only 4 out of 93 protocols developed by the ABA to assess death penalty jurisprudence. The second was the Supreme Court’s announcement the next day that it would hear Baze v. Rees, an Eighth Amendment civil rights challenge to Kentucky’s lethal injection protocols.2 Counsel for the two petitioners is NACDL member David M. Barron of the distinguished Kentucky Department of Public Advocacy. In the days that followed, NACDL issued a statement calling once again for an immediate national moratorium on executions and capital trials.

The four-score problems the ABA identified in the Ohio system run through death penalty systems throughout the country. A number of the recommendations in the report, such as eyewitness identification reform, recording of custodial interrogations, preservation of evidence and adequate funding for defense services, should be applied to all cases to lessen the probabilities of wrongful convictions. The New York Times noted in an Oct. 1 front page story that NACDL has pushed legislation in statehouses throughout the country in an effort to implement these basic reforms in all cases.3 The elephant in the room is that our criminal justice systems are created and operated by human beings, and human beings are fallible. That presents an unacceptable level of risk when someone must decide whether another human being deserves to live or deserves to die.

The ABA neither opposes nor supports the death penalty, but has called for a national moratorium on executions. Likewise, the Ohio study team called on Gov. Ted Strickland to suspend executions in the state until a “thorough review” is conducted of all aspects of capital punishment in the state. Although the study team necessarily limited its criticisms to Ohio, capital defenders everywhere, federal and state, will recognize the problems outlined in the report. Indeed, the many exonerations over the past 10 years should undermine any faith in the infallibility of the machinery of death that we employ.

One aspect of Ohio’s death machine that the ABA team did not look at was Ohio’s use of lethal injection, with protocols similar to those now being challenged in the Supreme Court.4 Botched lethal injections are not theoretical. They are a horrible reality, and more and more, prisoners die in agony. Many times, they do not just “go to sleep.” The Toledo Blade reported that it took repeated injections over an hour and a half to kill Joseph Lewis Clark last May:

Those who witnessed Clark’s execution saw a procedure that typically lasts approximately 10 minutes drag into one that lasted 86 minutes.
The execution team struggled for 25 minutes to find usable veins in Clark’s arms before making the decision to proceed with just one intravenous shunt in his left arm.

After uttering his final words, Clark lay extremely still, breathing shallowly.

A witness described the scene as one where Clark appeared to have fallen asleep, except for the occasional movement of his feet.

But after a few moments, Clark raised his head, shook it back and forth, and repeatedly declared, “It don’t work.” . . .

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The execution team then closed a curtain to block witnesses’ view of the execution chamber, but witnesses . . . said Clark’s moans and groans were audible through the glass.5 

The record in Baze v. Rees contains undisputed evidence that the chemicals currently used — thiopental, pancuronium bromide, and potassium chloride — could be replaced with other chemicals with less risk of pain, and thus arguably comport with the Eighth Amendment. If the states and the federal government are going to persist in killing prisoners, then courts cannot allow death sentences to be imposed in a manner that inflicts unnecessary pain and suffering.

There is no humane or decent way to kill another human being. Hypodermic needles clog, electric chairs catch fire, ropes break, and gas chambers asphyxiate (eventually). Our modern killing methods are of the same kin as the methods prevalent in colonial days — drowning, garroting, burning at the stake, and piling boulders on the chest of the condemned.

Likewise, in criminal courts there is no acceptable way to decide who should live and who should die. The entire death penalty system itself, from arrest onward, is so flawed that the states and the federal government must declare an immediate moratorium on capital prosecutions and executions until thorough analyses of every stage and every procedure have been conducted. Whatever one’s views on capital punishment, every jurisdiction needs to provide a system that is fair, objective and adequately funded, with zero margin of error. Nothing less should be acceptable to anyone.

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But for me, it is long past the time when we should go beyond attempts to improve on our methods of execution and take a moral stance to cease once and for all this form of punishment. It is cruel, and it is also unusual: Over 90 percent of the world’s countries and all of its democracies — 130 U.N. member nations — recognize the sheer barbarity of the death penalty and have either abolished it altogether or declared a moratorium on its use, either by law or in practice. Amnesty International reports that the Western Hemisphere is almost execution-free already, with only the United States continuing to execute prisoners on a regular basis. The only other Western Hemisphere countries to have carried out legally sanctioned executions since 1999 are Cuba, Guatemala, and the Bahamas. Indeed, the United States is in a select group that continues to use the death penalty as a routine form of punishment. According to the Death Penalty Information Center in Washington, D.C., of all known executions that took place in 2006, 91 percent were carried out in only six countries: China (1,010), Iran (177), Pakistan (82), Iraq (65), Sudan (65), and the United States (53). We ought to be in better company than that.
I prefer to stand with Justice Blackmun, who after a career of tinkering had finally had enough when he wrote in dissent:

Within days, or perhaps hours, the memory of [this defendant] will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the state.

But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the states and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. . . .

From this day forward, I no longer shall tinker with the machinery of death. . . . Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.6 

Oct. 10 was World Day Against the Death Penalty, an international observance sponsored by the World Coalition Against the Death Penalty, of which NACDL is a member organization.7 I attended news conferences in San Juan, Puerto Rico, on Oct. 4 and New York City on Oct. 10 in support of a worldwide moratorium on the death penalty. Coalition press conferences were also held in Rabat, Kinshasha and Lisbon. I hope that someday the United States joins the rest of the world in abolishing the death penalty.



  1. American Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio State Death Penalty Assessment Report, September 2007 (495 pages), available at An executive summary of the report is available at
  2. Baze v. Rees, No. 07-5439, cert. granted, 9/25/07.
  3. Solomon Moore, Exoneration Using DNA Brings Changes in Legal System, N.Y. Times, 10/01/07 at A1.
  4. Baze, supra. Questions presented: I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain? II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used? III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering? IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?
  5. Erica Blake, Family Sues Over Botched Ohio Execution, The Blade (Toledo, OH), 7/3/07.
  6. Callins v. Collins, 510 U.S. 1141, 1143-1146 (1994) (Blackmun, J., dissenting from a denial of certiorari).