Pro Bono

Volunteering

Learn how to get involved as a pro bono attorney.

Thank you for your interest in the challenging but rewarding work of death penalty representation!

The Project's greatest need is for attorneys who can represent a prisoner in his or her state post-conviction proceedings. Because of the time-intensive nature of these cases, volunteers must have a team and adequate resources for experts, investigation, and travel. As a result, most of our volunteers come from mid to large-size civil law firms.

For attorneys at smaller firms or solo practitioners: 
Although it might not be feasible for individuals or small firms to provide full post-conviction representation to a death row inmate, the Project occasionally has smaller, discrete matters such as amicus briefs, petitions for certiorari, and research projects that are better suited for one or two attorneys.  If you are interested in hearing about these opportunities as they become available, please message us at deathpenaltyproject@americanbar.org.

What you should know.

Interested attorneys should review our sections on the types of work available, the anticipated costs in capital post-conviction representation, available resources to assist you, the next steps and the FAQ below.  To inquire about available pro bono opportunities, contact the Project by email.  

Click here to hear advice from previous volunteers! 🎙️


Types of Work

State Post-Conviction

The Project’s greatest need is for volunteer attorneys to assist with state post-conviction cases. Individuals whose cases are in state post-conviction proceedings have typically exhausted their direct appeals and must now petition the state court for a writ of habeas corpus in order to obtain relief. In post-conviction proceedings, counsel must develop and introduce evidence that was not presented at trial. A significant part of the representation process, therefore, involves fact investigation and developing new claims based on new evidence. In many states, there is little or no access to court-appointed counsel in state post-conviction proceedings, creating a great need for qualified, dedicated volunteer counsel. State post-conviction cases provide great training and professional development opportunities for volunteer counsel. In addition to conducting fact investigation, interviewing witnesses and drafting the post-conviction petition, counsel may have opportunities to appear in court, including conducting a trial-like evidentiary hearing.

Federal Post-Conviction

Once a case has completed the state post-conviction process, the next step is federal habeas proceedings. Death row prisoners challenging their convictions in the federal courts are more likely than in state court to have appointed counsel available to represent them, but situations arise where state defender offices are unable to provide representation. In these instances, the Project seeks volunteer counsel to represent the prisoners in their federal post-conviction proceedings. Volunteer attorneys in federal post-conviction cases may have the opportunity to present arguments to the US Courts of Appeals. They may also receive payment from the court for fees and costs incurred during the representation.

Clemency

After a death row prisoner has been denied relief in both state and federal post-conviction proceedings, often the only remaining avenue to avoid execution is a grant of clemency by the state or federal executive. Clemency appeals focus on factors about the prisoner’s life, family, personality, and behavior to argue that the sentence should be commuted to something less than death. Clemency appeals also often highlight how the prisoner has accepted responsibility for his actions and has shown remorse. In addition to written materials, videos are often created to demonstrate the client’s life in a compelling way. There may be the opportunity to present this evidence in a clemency hearing. These matters often involve a more discrete commitment of time and resources by our volunteers than post-conviction representation.

Amicus Briefs

The Project occasionally receives requests for the assistance of volunteer counsel to write amicus briefs in death penalty cases. There is usually a limited time in which to file these briefs, so volunteer counsel can make a valuable contribution within a relatively short and defined timeframe, focusing on specific issues in the case. See past Project amicus briefs here

Petitions for Certiorari

The Project receives requests for volunteer attorneys to assist with petitions for certiorari to the state supreme courts, circuit courts of appeal, and the United States Supreme Court. Like amicus briefs, these matters generally involve a more limited and well-defined commitment of time and resources by volunteer counsel.

Miscellaneous Projects

The Project seeks volunteer counsel for a variety of miscellaneous projects related to death penalty cases, including direct appeal representation, discrete research projects and file review.

Costs

Each death penalty case involves unique circumstances and facts, and the costs involved will vary widely based on a number of factors, including the jurisdiction where your client is incarcerated and the specific issues you will raise. For these reasons, we cannot assess in advance what your actual costs will be. However, several of the most common categories of expenses are listed below.

Utilize Your Strategic Advisor!
The best way to reduce the costs of capital representation is to consult early and often with your strategic advisor. Doing so will help you avoid unnecessary research or investigation and help you focus on the most promising issues. Your advisor will be an invaluable asset to your team at every stage of the representation, saving you both time and resources.

Attorney Travel
Almost every case will require at least some out-of-pocket expenses for attorney travel. This cost can be moderated by utilizing local counsel and investigators for routine court filings and inperson investigation. Some of the various reasons attorneys need to travel include:

  • Meet with the client
  • Interview jurors
  • Interview witnesses
  • Interview family members and others for mitigation development
  • Conduct factual investigation (visit crime scene, retrieve records, etc.)
  • Conduct evidentiary hearing
  • Argue motions

Evidentiary Hearing
In state post-conviction cases, your goal is to obtain an evidentiary hearing where you can develop the new evidence that will be used to argue for relief. This is your best and perhaps only chance to create a record of the errors and evidence in your client’s case. The record you create in state court proceedings will be the record the federal courts review in federal habeas. This hearing is like a trial so you should expect to incur expenses things like exhibits, photocopying, and expert testimony. 

Experts
One of the biggest costs you will incur in your representation of a death row inmate is expert fees. It is almost impossible to determine in advance how many and what types of experts will be necessary for any given case, but some of the common experts needed in many death penalty cases are listed below:

  • DNA Expert
  • Experts in other human physical evidence (including fingerprints, bite-marks, and hair samples)
  • Crime Scene Reconstructionist
  • Ballistics Specialist
  • Forensic Psychiatrist
  • False Confession Expert
  • Mental Retardation Expert
  • Neurologist
  • Expert capital defender (for ineffectiveness claims)

There are several ways you can reduce the cost of expert witnesses. Choosing a case where actual innocence is not a factor can reduce costs because cases involving the testing of DNA and other physical evidence to prove innocence are often the most expensive. A few experts will work for a reduced fee in death penalty cases. There are also certain jurisdictions where it is more likely that the court will provide some funding for experts. All counsel are encouraged, regardless of jurisdiction, to seek payment for expert expenses from the court.

Investigators & Mitigation Specialists
At least one investigator and one mitigation specialist will be an essential part of your defense team. Very few of our cases were adequately investigated at trial. It is absolutely essential that post-conviction counsel conduct a thorough, in-depth investigation of both the client’s background and the facts of the crime, regardless of what the trial transcript or trial counsel suggests. Investigators and mitigation specialists have the skills and experience to efficiently gather the necessary information. There will be other tasks, such as gathering records and interviewing witnesses, that junior associates and legal assistants can handle.

Resources

  1. Project Resources
    Project Resource Libraries
    CapStandards.org
    CapitalClemency.org
    ProBono.Net/deathpenalty
  2. Trainings

    There are several national and regional CLE capital defense programs presented by criminal defense organizations and capital defender offices.
    You can find many of those training programs here:
    National Center for Criminal Defense Laywers
    National Association of Public Defenders
    Habeas Assistance & Training 
            âžĄ The Project offers a limited number of scholarships to attend these trainings. Learn more here.
  3. Resource Counsel
    The Project initiated a "Resource Counsel" program with the goal of ensuring that pro bono firms receive guidance from experienced lawyers in the field. If you accept a case, attorneys at the non-profit capital representation offices will assist so that the firm's resources -- both attorney time and out-of-pocket expenses -- are used appropriately. They can help locate experienced investigators, mitigation specialists and mental health experts, and assist you in making important strategic decisions. The Project's Director is also available to provide guideance and answer questions.

Next Steps

Many attorneys who are interested in working on a pro bono death penalty case are unsure of their first steps. While the process of getting approval to work on a case varies from firm to firm, attorneys should consider doing the following:

  1. Explore the Project website

    This site contains information about the Project, recent success stories, and a variety of resources to get you started. The answers to many basic questions about volunteer representation can be found here.
  2. Locate a partner

    There are two important reasons why you need to find a partner who will lead the case. First, you will need someone who can demonstrate senior-level support for the case as you seek approval from your firm’s pro bono committee or management. Then, once you have obtained that approval, it is important that the partner oversees management of the case, approval of necessary financial resources, and assigning tasks to other lawyers, and remains actively involved throughout the representation to make strategy decisions
  3. Talk to your pro bono coordinator

    Your pro bono coordinator can help you navigate your firms’ specific policies and procedures and help you seek approval. He or she can give you advice on the best way to present the idea of volunteer death penalty representation, whether you need to select a specific case in advance, and whether you should seek out additional team members in advance of presenting to the approval committee.
  4. Consider issues and jurisdiction

    Although it is impossible to say with any certainty which issues will arise in any particular case, the Project can show you cases that are likely to involve certain issues. Some examples of common issues are mental retardation, mental illness, prosecutorial/police misconduct, ineffective assistance of counsel, and racial bias. You should let us know if you have a specific interest or expertise in any of these areas. In addition, the Project has cases from nearly every active death penalty jurisdiction in the country, so you should consider where you want to take your case, understanding that it may not be possible to find a case in or near the state where your office is located. We will provide you with information about the unique challenges and benefits of working in the various jurisdictions and tell you where we are currently in need of your assistance.
  5. Contact the Project

    Members of the Project staff are always here to answer your questions, give advice, and provide additional information. We have worked with hundreds of law firms and understand the demands of law firm practice. We can also put you in touch with other volunteer firms for more information. You can reach us during business hours by phone at 202-662-1738 or any time by email at deathpenaltyproject@americanbar.org. 

FAQs


 

Why is there a nation-wide shortage of qualified lawyers to represent individuals under sentence of death? [Top]

There are three primary reasons for the current crisis:

  1. Supreme Court case law allows states to deny individuals court-appointed counsel at the state post-conviction level. 
    The U.S. Supreme Court has never recognized a constitutional right to counsel for indigent death row inmates seeking post-conviction relief in state or federal court. Through its amicus curiae briefs and resolutions, the ABA has repeatedly urged the Court to acknowledge this constitutional guarantee. (More information about the ABA's policy positions and amicus briefs in support of the right to counsel is available by going to the section of our practice area library where copies of some of our recent amicus briefs are posted. The briefs include references to ABA studies and resolutions regarding capital punishment.)
  2. In 1995-96, Congress eliminated all federal funding for the post-conviction defender organizations (known as "resource centers").
    During 1995-96, Congress eliminated all funding for the 20 capital post-conviction defender organizations known as "resource centers." The resource centers served three vital functions. Their trained attorneys provided direct representation to many death-sentenced prisoners. The offices also assisted pro bono firms and appointed counsel in hundreds of cases. Lastly, the centers monitored the progress of cases from conclusion of trial through clemency to ensure that claims were not forfeited by inexperienced counsel and that individuals were not executed without representation or without review of their constitutional claims.

    Only a handful of states now directly support a capital post-conviction counsel office and even fewer provide funding at the same level that had been appropriated by Congress. One compelling example is Pennsylvania, which, after losing federal funds for the resource center, refused to spend any money for capital post-conviction attorneys to represent those on death row, but has consistently allocated $500,000 annually for prosecutors who are assigned the responsibility of opposing death penalty post-conviction and habeas applications.

    Almost every state now makes some provision for appointment of counsel once a pro se application for habeas relief is filed by a death row prisoner. However, very few states require that appointed lawyers have sufficient experience and skill to handle this complex and time-consuming litigation, and few compensate lawyers with more than token fee payments or provide reimbursement for the substantial costs that must be incurred to investigate, prepare and litigate state post-conviction claims.

    The number of jurisdictions with death-sentenced prisoners who lack adequate legal representation is growing at an alarming rate. There are currently 3300 persons on death row in the United States and 99.5% of them are indigent.
  3. The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 set a one-year statute of limitations on the filing of federal habeas petitions.
    The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was passed with the goal of speeding up executions and restricting access to federal review of state convictions. For the first time in our history, there is a statute of limitations on the filing of federal habeas corpus actions. For many inmates, the clock is now ticking under the AEDPA, but these unrepresented individuals have no way to stop the federal clock and preserve their federal constitutional claims by filing a petition for post-conviction relief in state court.

    The ABA strongly opposed the AEDPA and has, in its resolutions and amicus briefs, argued that provisions of the AEDPA unduly restrict the jurisdiction of Article III judges by requiring deference to a state court on a question of federal constitutional law.

What is the ABA Death Penalty Representation Project doing to address the critical shortage of qualified lawyers for individuals facing execution? [Top]

The Project’s work includes:

  • Working with national and state criminal justice groups, bar associations and other organizations to implement the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) in all death penalty jurisdictions. The Guidelines set forth a national standard of care in death penalty cases in order to ensure that capital defendants receive high quality legal representation at all stages of the process;
  • Underwriting regional and national capital training programs and providing scholarships to prepare pro bono and appointed counsel to handle capital cases at trial, on appeal and in post-conviction proceedings;
  • Educating and soliciting support from members of the judiciary and the bar by speaking at judicial conferences and national criminal justice organization meetings about the ABA Guidelines;
  • Utilizing our confidential web site practice areas, CapStandards.org and CapitalClemency.org, to make resources readily available to pro bono and appointed counsel who are representing persons facing the death penalty;
  • Meeting with private law firms around the country to discuss the need for pro bono representation of death-sentenced prisoners. To date, the Project has recruited close to 200 firms to act as volunteer counsel in capital trial or post-conviction cases;
  • Supporting legislative efforts such as the Innocence Protection Act, which would provide badly needed funds for capital defender systems;
  • Filing systemic litigation challenges in jurisdictions that fail to invest properly in defender systems, fail to enforce standards for defense counsel, or otherwise deny essential resources and expert assistance to the defense; and
  • Assisting in the drafting of amicus curiae briefs to the U.S. Supreme Court. 

How can civil litigators successfully represent a death-sentenced prisoner? [Top]

One reason for the success of civil firms in this area is that those facing death often received inadequate representation from the lawyers appointed to defend them at trial. Frequently, these lawyers were paid only token amounts to handle the cases. Many were inexperienced or incompetent. Some individuals were represented by counsel who were trying their first cases, were senile or intoxicated, were ignorant of governing law, used racial slurs to refer to their clients, slept or were absent during crucial parts of the trial, and were denied or never requested any investigative or expert assistance. One of the most rewarding aspects of handling a habeas case is the opportunity to unearth and present meritorious defenses and mitigating evidence that were not developed at trial, and afford a client the vigorous advocacy he or she never received.

As we discuss below, death penalty cases are challenging, complex and time-consuming. They require litigation with the level of skill and resources to which mid- and large-size firms are accustomed.

The substantive criminal law will be new to civil litigators, as will many aspects of investigating, preparing and presenting capital post-conviction claims. However, though considered a criminal or quasi-criminal proceeding in some jurisdictions, habeas corpus is essentially a civil action. In federal court, in particular, the rules affecting pleadings, discovery and proof will be quite familiar. There are arcane and ever-evolving aspects of federal habeas procedure that are difficult for everyone who takes a case, including experienced criminal defense lawyers. Nonetheless, this is a challenge civil law firms routinely overcome.

At what stage of the proceedings should my firm become involved? [Top]

When state habeas relief is denied by the state court -- and you must assume it will be -- your firm will be expected to follow the case through proceedings in federal court and through clemency, if all habeas efforts fail. Given the time limits that apply in some state and all federal habeas proceedings, the earlier your firm enters the case, the better. There may even be an advantage to having your firm prepare the petition for writ of certiorari. This will depend upon the case you take and the advice you receive from the capital representation office to which we refer you.

In some jurisdictions, such as Texas, the post-conviction process runs concurrently with the direct appeal. In those circumstances, we urge firms to become involved shortly after the conclusion of trial. In most states, however, post-conviction proceedings commence after the conclusion of the direct appeal. In these states, law firms are encouraged to take a case as soon as possible after the direct appeal has been denied.

In years past, volunteer counsel often waited to take a case until it reached the federal habeas stage. A number of developments, most significantly, passage of the AEDPA make it imperative that, if the option is available, your firm handle the state post-conviction proceedings. The AEDPA provides a one-year statute of limitations for the filing of federal habeas corpus actions from the conclusion of the direct appeal. This period is tolled during the pendency of the state post-conviction proceeding. However, depending upon when the state petition was filed, the time in which to apply for federal habeas relief may be considerably shorter than a year. The strategic choices involved in coping with the changes in case and statutory law are more complicated than can be covered here. There is no doubt, however, that the earlier your firm enters the case, the greater the client's chances of success. There is another reason to become involved at the state habeas stage. It is critical that a thorough and detailed record be developed in state court. Too often, an incomplete and undeveloped record during state proceedings leaves the federal court without any basis to grant relief. This task is ideally suited to law firms that can invest the necessary resources and personnel in this effort.

What claims are most often raised in capital habeas petitions? [Top]

Because of limitations imposed by statute and case law, not all legal issues raised on appeal are cognizable in habeas corpus proceedings. Complete familiarity with the trial and appellate record is essential, but this is only a starting point. The purpose of a petition for writ of habeas corpus is to permit an extra-record examination of the case to develop evidence that the defendant was denied basic due process at the guilt and/or penalty phase of the trial and/or on direct appeal.

In evaluating the government's case, you will be searching for exculpatory evidence that might have been suppressed or was not discovered by the trial attorney. For example, did any of the state's witnesses -- especially informants -- commit perjury? Were informants given compensation or deals in pending cases that were not revealed to the defense? Did the prosecution conceal evidence that an eyewitness had changed his or her mind about an identification? Was there a failure to conduct scientific testing of physical evidence or is there reason to believe the testing was unreliable?

Your firm will be investigating both the underlying charge and the client's life history to ascertain what evidence counsel failed to present at trial that might reasonably have resulted in an acquittal, conviction of an offense less than capital murder, or most important, what evidence in mitigation was not presented that might have led to a sentence other than death? When, as too often occurs, trial counsel has conducted virtually no investigation, the defense team will be interviewing witnesses to the underlying offense and examining the client's family, medical and education history, and records of previous convictions and incarceration that might disclose evidence of mental illness, neurological impairment, mental retardation, and sexual and physical abuse. These social history investigations are unquestionably time-consuming, but properly supervised by an experienced capital case investigator or mental health professional, student interns can do much of the leg work such as locating, gathering and summarizing records. Given the likelihood that trial counsel did not undertake the necessary exploration of your client's background, these investigations yield a wealth of compelling information.

In many states, there are statutory time limits in which to file your initial petition and the AEDPA severely restricts the period in which the federal petition must be filed. Changes in state and federal law mean that the first round of habeas litigation is probably the only round. The availability of discovery proceedings varies from state to state. The importance of thorough investigation and presentation of claims in the state petition cannot be overemphasized. Evolving procedural rules in federal court may well preclude consideration of any other claims. Depending upon the particular claims you raise, there may be an evidentiary hearing in state court. Because of limitations imposed by the AEDPA - many of which are still the subject of litigation - you must anticipate the government will take the position, once you are in federal court, that the client is not entitled to another hearing.

How should my firm select a case? [Top]

In some states there is a particularly urgent need to enlist firms. We recognize that a number of factors, including geography, timing, staffing and possible legal issues will affect a firm's decision. What the Project cannot do is identify the "winning case." Every time a firm agrees to represent a death row prisoner, it takes an important step in winning the battle for due process and equal justice for that individual.

Because these cases have often been so poorly handled at trial and on appeal, neither the brief summaries we can send you nor a review of the opinion on direct appeal are complete or reliable predictors of the potentially meritorious claims. The most compelling issues and evidence will not be discovered until you begin your investigation. Once you have decided to accept a case, but before you select a client, the resource counsel can provide you with more information than is provided with the summary case.

Can the firm expect payment for any attorney hours or out-of-pocket expenses? [Top]

Particularly because we are asking you to take a case in a state that pays no attorney fees or only token amounts, you must assume that there will be little or no compensation for billable hours or costs incurred at the state post-conviction stage. Georgia, for instance, provides no fees or reimbursement at the state post-conviction stage. If appointment and compensation are possible, one of our resource counsel with whom you are working will advise your firm how to proceed. Even if appointment at the state level is possible, the fees and money available for out-of-pocket expense reimbursement will usually be nominal. Although non-payment may be the norm, your firm may decide to challenge local or statewide practice. This is a strategic decision that should be discussed with the resource counsel. Ultimately, however, the firm is undertaking a substantial pro bono commitment, especially in state court.

By statute, lawyers who are appointed in federal court are paid, at a maximum, an hourly rate of $163.00. The federal statute also authorizes reimbursement for necessary expenses such as investigators and expert witnesses. The firm cannot, however, postpone any necessary state post-conviction investigation or expert evaluations with the expectation of being compensated later in federal court. The doctrine of exhaustion requires you to develop and raise all federal constitutional claims and supporting evidence in state court. If you fail to do so, it is likely those claims will be barred from consideration by the federal court.

How many hours will the case take and how much will it cost the firm? [Top]

Because this depends upon the case you accept, its procedural posture and the jurisdiction in which the case is pending, it is impossible to predict the number of hours and the costs to the firm with any precision. There are differences in post-conviction practice and procedure in each state that will affect matters such as statutory deadlines and costs. Like any litigation, post-conviction practice involves periods of intense activity interspersed with what may be months during which the demands on the firm's resources will be minimal.

There is no question, however, that capital post-conviction cases are time-consuming. Over a period of years, in state and federal court and, if necessary, in clemency, your firm may well devote 2,000 hours. The lawyers whom the Project has recruited in the past would be pleased to talk with you about how they have staffed and managed their cases. The Project can also refer you to lawyers at firms in your own community to answer these questions.

Do members of the firm need training in capital post-conviction representation and, if so, what types of programs are available? [Top]

There are opportunities to learn the skills needed to successfully handle a capital post-conviction case. Each year there are several national and regional CLE programs presented by criminal defense organizations and capital defender offices. You can find many of those training programs at theNational Center for Criminal Defense Laywers,  National Association of Public Defenders, and the Habeas Assistance & Training group. 
        âžĄ The Project offers a limited number of scholarships to attend these trainings. Learn more here!

The Project initiated its "Resource Counsel" program with the goal of ensuring that pro bono firms receive guidance from experienced lawyers in the field. If you accept a case, attorneys at the non-profit capital representation offices will assist so that the firm's resources -- both attorney time and out-of-pocket expenses -- are used appropriately. They can help locate experienced investigators, mitigation specialists and mental health experts, and assist you in making important strategic decisions. The Project's Director is also available to provide guideance and answer questions.

A comprehensive guide to federal habeas practice are detailed in several texts, including Habeas Corpus Practice and Procedure by James Liebman and Randy Hertz and Habeas Corpus Checklists by Ira Robbins, which should be added to your library.

If you agree to represent a client, you will also be given access to the Project's secure resource site, CapStandards.orgCapitalClemency.org and ProBono.Net/deathpenalty where you can find state-by-state updates and resources.

The practice area contains a link to the Capital Defense Network where you will find a Habeas Assistance Training Project (HAT) component that includes case law summaries, on-line litigation guides, and important updates for federal habeas practice. HAT is a program of the Defender Division of the Administrative Office of the U.S. Courts that is specifically designed to support lawyers handling federal capital habeas cases.