Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty

The revised edition of the ABA\u27s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases offers a lens through which to consider whether retention of capital punishment is sensible public policy. A reader of the Guidelines finds that the current death penalty system is characterized by severely impaired clients, pervasive racism, a structural bias in favor of guilty verdicts, less effective counsel than in non-capital cases, and a dysfunctional system of post-conviction review. No amount of money can solve these problems; at best, sufficient expenditures can ameliorate them. But making even that attempt will be costly - not just because of the amounts spent, but because those amounts are likely to be diverted from structural improvements that would produce tangible benefits to the criminal justice system as a whole. As the states consider this situation, perhaps an unintended but welcome effect of the Guidelines\u27 stark portrayal of the realities confronting them will be to prompt a re-consideration of the choice to have a death penalty at all