US and Japan must improve death penalty policies to ensure fairness and accuracy Commentary
US and Japan must improve death penalty policies to ensure fairness and accuracy
Edited by:

Stephen Hanlon [Chair, American Bar Association Death Penalty Moratorium Implementation Project Steering Committee]: "While the American Bar Association (ABA) takes no position on the death penalty per se, it has called on U.S. capital jurisdictions to halt executions until policies and procedures are implemented to ensure that death penalty cases are administered fairly and impartially and to minimize the risk that innocent persons are executed.

In comprehensive assessments conducted by the ABA in eight U.S. states between 2005 and 2007, the ABA identified numerous areas in which these jurisdictions are failing to ensure fairness and accuracy in their administration of the death penalty. Similar shortcomings were cited by the U.N. Human Rights Committee in its observations about Japan. These problem areas include:

  • Failure to ensure that the death penalty is limited to the most serious crimes. Comparative proportionality review, where an appellate court compares a death sentence to sentences imposed on similarly situated defendants, helps ensure that the death penalty is reserved for the worst of the worst offenses and offenders. In states examined, the ABA found that courts do not conduct meaningful comparative proportionality review, or, as in Arizona and Pennsylvania, appellate courts do not engage in any sort of proportionality review;
  • Failure to implement law enforcement practices designed to minimize the risk of wrongful convictions. Eyewitness misidentification and false confessions are two of the primary causes of wrongful convictions. The ABA found that law enforcement agencies in most jurisdictions examined have not implemented national "best practices" on identification and interrogations and that most states do not require law enforcement to video or audio record the entirety of custodial interrogations in murder cases; and
  • Unavailability of meaningful review of a death row inmate's case for clemency. The clemency process is the final avenue for review for death row petitioners; however, the ABA found that few states require that the clemency decision-maker meet with an inmate or an inmate's counsel and that clemency petitions are granted or denied without any explanation of reasons.

In 2005, the American Bar Association (ABA), the Japan Federation of Bar Associations (JFBA), and the European Commission sponsored an International Leadership Conference on Human Rights and the Death Penalty held in Tokyo, Japan. Worldwide capital punishment issues were raised at that conference with which Japan and the U.S. each still grapple. The U.S. has much work ahead to prevent injustice, unfairness, and inaccuracy in its death penalty systems and the UN Human Rights' Committee has set forth a similar challenge for Japan."

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