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Death Penalty Opponents Still In Charge at the ABA:
Mark Sherman of the Associated Press has the breaking news here. The ABA's new report is particularly newsworthy because it is a compilation of past reports.
Christopher M (mail):
Further breaking news (I can't find an AP source yet): Prof. Kerr Remains Pleasantly Aloof from Moral and Political Values Other than a Commitment to Studied Doctrinalism.

[OK Comments: Even Further Breaking News: Anonymous Blog Commenter Mistakes Poking Fun at ABA For Poking Fun at Substantive Position ABA Takes.]
10.28.2007 9:55pm
3L:
From the article:

"After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed," said Stephen F. Hanlon, chairman of the ABA Death Penalty Moratorium Implementation Project. "The death penalty system is rife with irregularity."

The ABA, which takes no position on capital punishment

... what?
10.28.2007 10:21pm
ifoughtthelaw (mail) (www):
It's possible to take no position on capital punishment in the abstract but also work toward a moratorium based on evidence that the current system for imposing capital punishment doesn't work very well.
10.28.2007 10:25pm
justwonderingby:
3L: You nailed it right on the head. And how many law schools with their various "death penalty projects" have even ONE professor who supports the death penalty? Nope, "death penalty projects" at law schools ONLY means being against the death penalty. But, of course, law schools are all about "diversity".
10.28.2007 10:28pm
Tony Tutins (mail):
The ABA used to take a variety of left-wing positions, such as being pro-gun control -- did something change?
10.28.2007 10:28pm
Dave N (mail):
And how many law schools with their various "death penalty projects" have even ONE professor who supports the death penalty?
Pro-death penalty law professors are certainly few and far between. Their ranks have increased by one, though, with Judge Paul Cassell's resignation from the federal bench to return to the J.C. Quinney College of Law at the University of Utah.
10.28.2007 10:49pm
Dave Griffith (mail):
It's newsworthy "because it's a compilation of past reports"? What else did you learn in your stay in our land?

[OK Comments: That my joke was too subtle for some earthlings.]
10.28.2007 10:54pm
Joe Bingham (mail):
It took me a second to laugh because I'm stupid, but this entry, and 3L's comment, were my funniest encounters of the day. Thanks.
10.28.2007 11:24pm
3L:
Ifoughtthelaw-- I guess that makes sense.

Justwonderingby-- My law school is constantly trying to dump people into "human rights internships", whereby they help the prosecution in the the Rwandan war crimes tribunals. I always wished it was possible to work for the defense. If you win, you're clearly a great lawyer and will instantly become famous, and if you lose, well, that's not so bad either...

Joe-- For the part I played in that, you're welcome!
10.28.2007 11:39pm
Christopher M (mail):
I just don't get why it's supposed to be funny. They've done a series of state-by-state reports in the past; now they've issued a new report that synthesizes the data they've collected and makes a national policy recommendation. (Or so I gather from the article.) What is there to make fun of?

The only two things I can think of are (1) the idea that the ABA would make recommendations regarding the procedures by which criminal justice is administered; or (2) the fact that they continue to call attention to the issue despite a lack of success so far. I genuinely don't get why either one is supposed to be ridiculous.
10.28.2007 11:53pm
OrinKerr:
Chistopher M,

I don't know what kind of sense of humor you have, so maybe it's just something that other people will find funny that you personally do not find funny. But the effort at humor was based on the juxtaposition between how the AP report portrays the ABA and the reality of what the ABA is and how it works.
10.29.2007 12:06am
tsai:
3L, I think the ABA takes issue with the way the death penalty is implemented but does not take a position on the morality of the death penalty itself. See, e.g., here:

The ABA, while taking no position on capital punishment per se, . . . has urged the federal and state governments to halt executions in order to take a hard look at the growing body of evidence showing that race, geography, wealth, and even personal politics can be factors at every stage of a capital case - from arrest through sentencing and execution.
10.29.2007 12:07am
tsai:
That said, it was clearly misleading for the reporter to write that the ABA "takes no position on capital punishment."
10.29.2007 12:10am
Dave Hardy (mail) (www):
I always wished it was possible to work for the defense. If you win, you're clearly a great lawyer and will instantly become famous, and if you lose, well, that's not so bad either...

Sure. "Yeah, that's nice, but I got the Beast of ___ off with six months of probation, some sensitivity counseling, and 100 hours of community service" oughta get you drinks at bar conventions for the rest of your life.
10.29.2007 12:29am
Kovarsky (mail):
i'd point out that the study's results exclude consideration of texas, which is - let's face it - the worst of the worst.
10.29.2007 2:23am
theobromophile (www):

i'd point out that the study's results exclude consideration of texas, which is - let's face it - the worst of the worst.

Not by the numbers of executed per capita. That honour belongs to Oklahoma. Delaware is not far behind Texas, IIRC.
10.29.2007 3:22am
justwonderingby:
Hey Kovarsky, does that include lawyers from that venerable state?
10.29.2007 9:11am
Virginian:

i'd point out that the study's results exclude consideration of texas, which is - let's face it - the worst of the worst.


Or the best of the best...depending on your perspective.
10.29.2007 10:27am
Waldensian (mail):

Not by the numbers of executed per capita. That honour belongs to Oklahoma. Delaware is not far behind Texas, IIRC.

Although clearly Texas's death penalty has the honor of burdening the Supreme Court more than any other state. Not that it's all Texas's fault, of course.
10.29.2007 10:28am
Houston Lawyer:
Most of the Texas cases come out of Harris County, where Houston is located. I'm not aware of any demographic group here that opposes it.

I've always been amused that when defense attorneys seek a change of venue out of Harris County because of adverse publicity, they end up in Kerr County. Kerr County is populated by the descendants of German immigrants who generally believe that the death penalty isn't a harsh enough penalty.
10.29.2007 11:22am
Dave N (mail):
Although clearly Texas's death penalty has the honor of burdening the Supreme Court more than any other state.
And clearly the Ninth Circuit has the honor of burdening the Supreme Court more than any other circuit. But based on reversal rates, which one is usually "right" in the first place?
10.29.2007 11:22am
Doug Berman (mail) (www):
I have this long post on what the ABA's "research" is missing.

What bothers me most about all this is the amount of time and energy that the ABA has devoted to an issue that impacts very, very, very few lawyers.
10.29.2007 12:07pm
Dave N (mail):
Professor Berman,

You made some excellent points in a concise manner and I enjoyed reading them. BTW, your blog should be directly linked to this one (Hint, Hint, EV). I added it to my favorite list and recommend it to those, like myself, who concentrate on criminal law and procedure. Keep up the good work.
10.29.2007 2:55pm
Tony Tutins (mail):
Prof. Berman -- even if the issue affects very few lawyers, the death penalty has a large share of mind both in law schools and among the general public. It is a favorite essay topic of high schoolers and college freshmen. Few people are without an opinion on it. The ABA has a stake in the issue because member-lawyers prosecute and defend accused murderers, preside over their trials, and participate in their endless appeals.

Further, citizens of other civilized countries think less of us because they believe the death penalty is barbaric. Other countries deny our extradition requests if they believe the fugitives would be subject to the death penalty.
10.29.2007 3:30pm
Kent Scheidegger (mail) (www):
<i>The ABA has a stake in the issue because member-lawyers prosecute and defend accused murderers, preside over their trials, and participate in their endless appeals.</i>

Just curious, but does anyone have any data on what percentage of American prosecutors are members of the ABA? I recall reading somewhere that only one-third of lawyers overall are members, and I suspect that fraction is much, much, much lower for prosecutors.

Why pay dues to an organization that takes your opponent's side against you <b><i>every</i></b> time it takes a stand?
10.29.2007 6:08pm
Kent Scheidegger (mail) (www):
Looks like some software glitch messed up my HTML attributes. Oh, well.
10.29.2007 6:10pm