A person does not need to go any farther than a Law & Order episode to understand the Sixth Amendment of the U.S. Constitution. We hear the officers on TV tell suspects that if they cannot afford a lawyer, one will be provided for them. The Framers of the Constitution made the statement more artfully when they wrote that the accused in every criminal prosecution “shall enjoy the right to have the Assistance of Counsel for his defence.”

In Gideon v. Wainright, the Supreme Court explained the importance of this right, stating, “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” The right to counsel protects all of us from being subjected to criminal prosecution in an unfair trial. But nowhere is this right more important than when the accused faces the death penalty.

Unfortunately, the Sixth Amendment’s promise of counsel for all, including the poor, often remains unfulfilled in capital cases. The Supreme Court has affirmed that this right includes the right to an effective lawyer, but all too often, defense attorneys involved in capital cases prove inept, ineffectual, underfunded, and overmatched by the State’s attorneys. Some of these attorneys have even been drunk or asleep at trial.

Courts overturn death sentences on a weekly basis. An extraordinary number of these reversals are granted because the death sentence was a result of egregiously incompetent defense lawyering. In fact, studies show that nearly 70 percent of death sentences are overturned during the appellate process, and a large proportion of these reversals are due to a finding that the condemned received poor and ineffective representation at trial.

Not every capital crime results in a death sentence; most do not. But the greatest predictor of who will live or die is not the severity of the crime or the accused’s criminal background. It is, instead, the quality of the lawyer for the accused. Capital defendants represented by quality counsel rarely receive a death sentence (and wealthy people virtually never do). Shamefully, the whims of local governments and states determine whether, in a particular location, an unprepared and underfunded lawyer or a trained and funded institutional defender will be available for an indigent defendant.

For example, a capital defendant in North Carolina will generally receive vastly superior representation than a capital defendant who may be accused of an identical crime in Alabama. The difference is that activists and attorneys in North Carolina insisted that the legislature make indigent capital defense a priority. Unfortunately, our allies in Alabama have not been as successful yet. In fact, this disparity exists in the state known for its eagerness to use its death chamber, Texas. A defendant in west Texas will (as of recently) have quality representation by an institutional lawyer, while defendants in other parts of Texas will not.

Making matters worse, obtaining relief based on ineffective trial counsel depends on whether the condemned inmate has an effective lawyer representing him during his post-conviction appeals. Here, again, the quality of post-conviction counsel varies wildly and can be downright abysmal. For example, the ACLU has documented numerous cases where lawyers in Florida failed to meet mandatory filing deadlines for their death-sentenced clients’ petitions. The Supreme Court has not recognized the Sixth Amendment right to counsel beyond an initial direct appeal. This means that there is no guarantee that the condemned will eventually receive a good lawyer capable of convincing the reviewing court that the death sentence was a result of poor lawyering in the first place.

The death penalty is the ultimate infringement on a person’s civil liberties. While the ACLU's Capital Punishment Project favors the abolition of the death penalty for many reasons, we understand that it may not happen right away. Therefore, since capital punishment continues, we would hope that the next President would use the power of the federal purse (i.e., federal funding for criminal justice-related programs) as an incentive for states to provide fully-funded quality institutional defense organizations to ensure the promise of the Sixth Amendment and, in turn, the right to a fair trial. The same can be done to ensure adequate lawyering for post-conviction cases. Nothing less than the adequate counsel our Constitution guarantees is acceptable when the ultimate punishment is at stake.

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