Defending Categorical Exemptions to the Death Penalty: Reflections on the ABA's Resolutions concerning the Execution of Juveniles and Persons with Mental Retardation

Abstract

The American Bar Association's (ABA's) recent call for a moratorium on the imposition of capital punishment' constitutes a dramatic escalation of the ABA's efforts to improve the American death penalty system. Over the past twenty years, the ABA has focused on particular aspects of state practices and recommended piecemeal relating to competency of counsel, postconviction review, race discrimination, and the execution of juveniles and persons with mental retardation.2 Recognizing that each of these prior resolutions has essentially fallen on deaf ears, and that current death penalty reforms have run in the opposite direction of its proposals, the ABA concluded that the overall system surrounding the American death penalty had become so seriously flawed3 that a stronger position was warranted. We are sympathetic to the ABA's global approach to the administration of the death penalty in this country and have elsewhere taken stock of the courts' quarter-century effort to regulate state capital systems via the Eighth and Fourteenth Amendments.4 In this article, we address the ABA's resolutions regarding the execution of juveniles and persons with mental retardation.5 Al-