|II. PROVIDE ADEQUATE LEGAL COUNSEL FOR ALL CAPITAL DEFENDANTS|
|Tuesday, 28 October 2008 21:24|
Summary of the Problem: The integrity of the criminal justice system turns on the fairness of criminal trials, which is concomitantly dependent on the adequacy of defense counsel's representation. Yet, the promise of effective assistance of counsel, embodied in the Sixth Amendment, has often been broken for defendants across the country facing the death penalty. Capital defendants are predominately poor and must rely upon a broken indigent defense system that is overworked, underpaid, inexperienced, or non-existent. With such inadequate resources, capital defendants are, by default, disadvantaged from the start, resulting in death sentences that are both arbitrary and unfair. Moreover, the absence of a right to counsel in post-conviction proceedings, coupled with the myriad procedural and substantive hurdles in raising a claim of ineffective assistance of counsel, leaves capital defendants with little recourse when they are deprived of the necessary legal resources. The initial success of federally funded capital defender organizations, which have been defunded since 1996, demonstrates how proper training and support for competent death penalty counsel can be cost-effective and dramatically increase the quality of capital representation in state and federal post-conviction proceedings, as well as direct representation of capital defendants. Federal support for capital representation is as important now as ever before in order to ensure that every capital defendant receives a fair and just trial.
1. Create an Office of the Defender General, comparable to the U.S. Department of Justice, to operate independently from the judiciary and select and monitor counsel representing state and federal capital defendants in federal proceedings.
2. Support a National Capital Bar of qualified and experienced attorneys to represent capital defendants.
1. Transfer the defense function from the federal courts to a new Office of the Defender General.
2. Allow any lawyer appointed to represent state death-row prisoners in federal court, including without limitation Capital Habeas Unit attorneys, to appear in state court.
3. Regarding counsel for prisoners seeking federal habeas review, require federal judges to appoint the legal team nominated by Capital Habeas Unit attorneys or the resource counsel from the Administrative Office of the Courts unless compelling reasons deem otherwise.
4. Establish a right to counsel for capital defendants at all stages of the legal process through post-conviction proceedings and ensure appropriate funding, including funds for attorney's fees, investigative expenses, and expert witnesses.
Legislative Appropriations (Solutions w/ Funding Requests):
1. Fund an Office of the Defender General.
2. Create and fund defender organizations providing post-conviction representation in every applicable jurisdiction in order to ensure adequate representation for all death-row inmates.
3. Support a National Capital Bar of qualified and experienced attorneys to represent capital defendants.
Executive Branch: Office of the Defender General (newly created executive agency)
Legislative Branch: Senate and House Judiciary and Appropriations Committees
Legislative Branch: The Innocence Protection Act (IPA) was signed by President Bush on October 30, 2004, as part of the larger Justice for All Act. The House of Representatives passed the IPA by an overwhelming majority vote of 393 to 14, and the Senate passed it by voice vote three days later. Part of the IPA addresses capital representation by authorizing $75 million in state grants each year for five years to improve standards for prosecutors and defense counsel appointed to state capital cases. The IPA is scheduled for reauthorization in 2009. (For more information, see http://www.thejusticeproject.org/national/ipa/.)
On April 8, 2008, the Subcommittee on the Constitution of the Senate Judiciary Committee held a hearing on "The Adequacy of Representation in Capital Cases." Witnesses included Michael Greco, former President of the American Bar Association (discussing ABA study finding grave concerns in capital representation); Bryan Stevenson, Executive Director of the Equal Justice Initiative (providing examples of inadequate counsel and insufficient resources); Honorable Carolyn Engle Temin, Senior Judge of the Court of Common Pleas of the First Judicial District of Pennsylvania (discussing personal experiences as trial judge witnessing inadequate defense counsel in capital cases); and Donald Verrilli, Partner at Jenner & Block (post-conviction counsel to petitioner in Wiggins v. Smith, explaining need for sufficient resources to conduct necessary defense investigation). Sens. Patrick Leahy (D-VT) and Russ Feingold (D-WI) also spoke about the need for adequate counsel in capital cases. Transcripts and the webcast of this hearing are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3253.
Judicial Branch: While the U.S. Supreme Court has recognized a defendant's Sixth Amendment right to counsel in criminal cases, see Gideon v. Wainwright, 372 U.S. 355 (1963), it has not recognized that right in post-conviction proceedings, see Murray v. Giarratano, 492 U.S. 1 (1989). Claims of ineffective assistance of counsel in violation of the Sixth Amendment are subject to a two-prong standard, set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires that counsel performed deficiently and that the deficient performance prejudiced the defendant's case in order to find a constitutional violation. A factor in considering the effectiveness of counsel is the duty to investigate the defendant's case. See Wiggins v. Smith, 539 U.S. 510 (2003); see also Rompilla v. Beard, 545 U.S. 374 (2005) (finding counsel ineffective for failure to examine defendant's prior convictions before capital sentencing phase of trial).
The Subcommittee on Federal Death Penalty Cases of the Committee on Defender Services of the Judicial Conference of the United States released a report in May 1998, called "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation." In addition to findings with respect to the rising number and cost of capital cases, the report makes recommendations to improve capital defense representation in federal cases. The report is available at http://www.uscourts.gov/dpenalty/1COVER.htm.
Potential Allies, Potential Opposition and Public Opinion:
Public Opinion: The National Legal Aid and Defender Association and the Open Society Institute commissioned a study on public opinion about due process and the representation of indigent criminal defendants. In September 2000 and October 2001, Beldon Russonello & Stewart, a national, independent public opinion research company, issued its findings from eight focus groups and a national survey. Two-thirds of Americans (64%) supported the use of tax dollars to provide counsel for criminal defendants who cannot afford an attorney. On the issue of indigent defense systems, 71% supported the establishment of public defender's offices with full-time professional staff, compared to just 21% who preferred a system of court-appointed private attorneys. Eighty-eight percent supported resources to be made equally available to prosecutors and defenders, and 64% strongly supported this proposition. Ninety-three percent believed competent legal representation is necessary to prevent wrongful convictions, and 89% believed that we must ensure competent legal representation in order for the legal system to function. Additional findings are available at http://www.nlada.org/Defender/Defender_Awareness/Defender_Awareness_Indigent.
For Further Information:
American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases" in 2003, available at http://www.abanet.org/deathpenalty/resources/docs/2003Guidelines.pdf.
Stephen B. Bright, Counsel for the Poor: The Death Penalty not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994).
Death Penalty Information Center, Death Penalty Representation, available at http://www.deathpenaltyinfo.org/death-penalty-representation.
Equal Justice Initiative, Death Penalty-Inadequate Counsel, available at http://eji.org/eji/deathpenalty/inadequatecounsel.
Miriam S. Gohara et al., The Disparate Impact of an Under-Funded, Patchwork Indigent Defense System on Mississippi's African Americans: The Civil Rights Case for Establishing a Statewide, Fully Funded Public Defender System, 49 Howard L. J 1 (2005).
Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. Va. L. Rev. 863 (1996).
Spangenberg Group, Publications, available at http://www.spangenberggroup.com/pub.html.
Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7
Principles for the Design and Reform Of Sentencing Systems: A Background Report http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7.
Mandatory Justice: The Death Penalty Revisited http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf.
|Last Updated on Wednesday, 19 November 2008 17:11|