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May 22, 2022

Supreme Court “Guts” Case Law Protecting the Right to Counsel

By Emily Olson-Gault, Project Director & Chief Counsel

The crisis of counsel for death row prisoners is now more urgent than ever before, and you have the power to help. Learn how to get involved

There is no federal constitutional right to counsel for prisoners on death row. Today, in Shinn v. Ramirez, that constitutional void allowed an ideologically divided U.S. Supreme Court to hold that federal courts should be bound by the evidence introduced in prior state proceedings, regardless of whether the prisoner had the assistance of an effective post-conviction lawyer – or any lawyer at all.

Nearly 35 years ago, the Supreme Court found in Murray v. Giarratano that the Sixth Amendment’s protections do not extend beyond the trial and direct appeal of a capital case. This left death-sentenced prisoners to fend for themselves in the labyrinth of state post-conviction proceedings, where they have a single opportunity to raise claims that their constitutional rights were violated or that they are actually innocent.

The immediate crisis of counsel generated by the Giarratano decision was dramatically amplified by the 1996 Antiterrorism and Effective Death Penalty Act, which insisted that a prisoner’s fate be decided primarily in the state courts. Federal law provides for the appointment of habeas counsel in federal court by statute, but AEDPA limits the arguments that a prisoner can raise and the evidence they can introduce in federal court based on what happened – or didn’t happen – in state court. In state court: where there is no right to counsel.

A series of Court decisions over the decades that followed announced increasingly narrow interpretations of AEDPA, further restricting the ability of federal courts to hear claims of error. In 2012, however, in Martinez v. Ryan, a clear 7-2 majority of the U.S. Supreme Court recognized the critical role of the state post-conviction process in protecting the right to effective counsel at trial and the inequity of holding prisoners responsible for the ineffectiveness of their lawyers or absence of counsel during the state post-conviction process. While stopping short of finding a constitutionally protected right to a lawyer during state post-conviction proceedings, it created a narrow pathway for prisoners who twice received ineffective representation – once at trial and again in state post-conviction proceedings – to raise a claim in federal court that their right to effective counsel at trial was violated, without being strictly bound to the claims and evidence presented at the state stage.

Today’s decision in Shinn, authored by one of the two dissenting justices in Martinez, effectively slams the door on that narrow equitable pathway to relief. Without explicitly overruling Martinez, it held that pursuant to AEDPA, no new evidence can be introduced in federal court – including the evidence necessary to prove that both trial and state post-conviction counsel provided constitutionally ineffective representation, as required to take advantage of the Martinez pathway.

In short, the Court’s decision permits a prisoner to “raise” a claim, but not to introduce the evidence necessary to prove that he should win. Writing in dissent, Justice Sotomayor called the decision “perverse” and “illogical” and said the Court’s opinion “guts” the core reasoning of Martinez.

This decision underscores the urgent need to ensure the provision of adequate resources and training to state post-conviction lawyers and to create meaningful state-based post-conviction defender programs. And while the ABA and many other individuals and organizations continue to fight for these reforms, today’s decision shines a light on the critical role played by pro bono lawyers who volunteer to step up and provide exceptional representation where the Constitution—and the Court—guarantee none at all.

More than 400 death-sentenced prisoners have received assistance through the ABA and its volunteer lawyers, and more than 100 of those have been saved from an unconstitutional death sentence or wrongful conviction, with hundreds of other cases ongoing. Pro bono lawyers provide a lifeline to prisoners who are at the mercy of a system that routinely fails to ensure counsel with adequate funding, resources, and training and yet simultaneously holds indigent death row prisoners responsible for the errors that arise out of that system. Without the generosity of these pro bono lawyers and their extraordinary investment of time and resources, many—if not all—of those individuals would have fallen into the gaping hole that has been left by the Court and by AEDPA in the post-conviction process.

Learn more about how you can help

Related: ABA Amicus in Shinn v. Ramirez

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.