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Good and Bad Lawyers Determine Who Lives and Who Dies

Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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March 10, 2010

In a separate post yesterday, I addressed how a person on death row’s life can be decided on a technicality, an issue to be decided by the Supreme Court in Holland v. Florida. Today’s post addresses another issue the Holland case raises — the role of attorney competence in deciding who gets executed in the United States.

Prosecutors seeking the death penalty for “capital” crimes, which are crimes eligible for the death penalty, don’t always prevail. Many people found guilty of capital crimes receive the severe sentence of life imprisonment without the possibility of release. One of the biggest predictors of who gets sentenced to death has nothing to do with relevant factors such as the heinousness of the crime, the culpability of the accused, or the life history of the accused. Rather, the quality of the lawyer representing the accused very often predicts who lives and who dies.

With rare exceptions, persons facing capital charges cannot afford a lawyer, and rely on court-appointed counsel. Whether the appointed lawyers are competent and sufficiently funded depends largely on geography and luck. In a few states, such as North Carolina, recent reforms require both competent lawyers for persons facing capital charges and funding sufficient to raise a serious defense. In the majority of death-penalty states, however, standards of competency are lacking, and funding is anemic. Even in jurisdictions in which the standard of capital-defense lawyering is generally adequate, an unlucky defendant can be appointed a lawyer missing the talent and/or dedication needed to defend a capital case competently.

The quality of the defendant’s counsel continues to have an outsized role even after a person has been sentenced to death. Among other reasons, many death sentences are set aside because a federal court finds the lawyer who represented the accused at his first trial in state court was so incompetent that the accused’s constitutional right to effective counsel was violated (PDF). But success in challenging a death sentence on this constitutional ground depends on the death-sentenced inmate having a quality representation (by different lawyers) in their habeas corpus appeal to the federal courts, which assesses the case for violations to the U.S. Constitution. And not just any lawyer will do. Federal habeas corpus appeals are known as the “brain surgery of the legal profession.” Yet beyond the first appeal to federal court, people fighting their death sentences have no constitutional right to a lawyer, and the quality of available counsel can be even more abysmal in these appeals than at the trial level.

In Holland v. Florida, the Supreme Court will decide whether the “gross negligence” of an attorney can cut off the defendant’s chance at federal habeas corpus review. If Holland loses, it will mean that people sentenced to death in state court because of attorney incompetence may never get a chance to prove that claim in a federal court if they are also unlucky enough to have been appointed a grossly negligent attorney in their appeal to federal court.

That would be unfortunate, and would show that our court system itself is too negligent to trust in the fairness of the death sentences it allows.

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