The ABA, providing its perspective on death penalty representation last month, emphasized that “no single factor is more essential to providing due process than access to qualified, adequately resourced defense counsel.”
The ABA views were presented Feb. 18 to the Ad Hoc Committee to Review the Criminal Justice Act Program, a panel appointed by the Judicial Conference of the United States to conduct a comprehensive and impartial review of the administration and operation of the Criminal Justice Act. The act, passed in 1964, created a system to provide defense services to financially eligible criminal defendants through counsel appointed by the court.
The most recent review of the program was in 1993, and the current review, which includes a series of public hearings that began in November, is expected to last for 18 to 24 months.
Appearing before the panel in Birmingham, Alabama, Emily Olson-Gault, director of the ABA Death Penalty Representation Project, testified on behalf of the association that the ABA has long been concerned about the quality and availability of defense counsel in death penalty cases. The ABA project she directs was established in 1986 to provide representation to indigent death row prisoners in their state and federal habeas corpus cases. In addition, the association created the Death Penalty Due Process Review Project (then known as the Death Penalty Moratorium Implementation Project) to conduct research on state capital punishment systems.
Olson-Gault emphasized that although the ABA does not take a position on the death penalty itself, the association calls for all jurisdictions that retain the death penalty to ensure due process and fairness at every stage of a capital proceeding. The association has recruited hundreds of private civil law firms to provide pro bono representation to indigent individuals facing a death sentence and has worked with local stakeholders to implement reforms to ensure fairness, due process and effective legal representation.
“The ABA brings the unique viewpoint of a national organization that combines voices from virtually every type of actor in the criminal justice system, including prosecutors, defense attorneys, and the judiciary. From this perspective, we are able to see national trends and identify systemic problems in capital counsel systems,” Olson-Gault said. She explained that the association most frequently observes problems in state courts, where funding and training often lag far behind the federal system, but there are challenges within the federal system as well.
She said that the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, first adopted by the ABA in 1989 and revised and updated in 2003, and other ABA standards provide guidance to help courts and defender programs address the following broad categories of issues in the federal death penalty system and ensure high-quality defense representation: adequate funding, counsel appointment standards, and performance and monitoring of capital counsel.
Olson-Gault emphasized that sufficient funding must be available at every stage of a capital case from pre-trial through clemency and that the imposition of a cap on funds is likely to significantly impair the ability of defenders to vigorously represent their clients.
Regarding appointment of counsel, the ABA guidelines focus on quality of representation rather than quantitative measures, such as years of experience. While continuity of counsel between state and federal habeas proceedings may be in the best interests of the clients, it must be first determined whether state counsel was effective and what the benefits and drawbacks of continuing appointment of the same attorney would be.
In addition, Olson-Gault said that performance standards alone are not enough and that any counsel appointment system must include a well-defined mechanism for regularly monitoring and enforcing the performance standards of counsel.
“The ABA Guidelines are designed to provide a roadmap for courts to assist with ensuring high-quality representation. However, no plan will truly improve the quality of counsel if the criteria are not uniformly applied and if unqualified or poorly performing attorneys remain eligible for appointment,” she said.