October 17, 2019 Feature

“Justice by Geography”: Unequal Representation and Arbitrariness in Capital Punishment

An examination of the unequal representation and arbitrariness in capital punishment.

Emily Olson-Gault

Download a printable PDF of this article.

It is an old adage among members of the capital defense bar that “capital punishment is punishment for those without capital.” Virtually all of the 2,700-plus death row prisoners across the country are indigent and had representation funded by—and thus subject to funding limitations of—the state. Whether a person is sentenced to death depends in large part on the quality of representation provided, in particular the resources available to defense counsel for the extraordinarily complex and time-consuming task of defending a capital case.

This remains true through appeals and post-conviction representation, where courts perform the critical function of ensuring that the death penalty was imposed in accordance with the law. At this stage, lawyers must contend with not only the complexities of the underlying capital offense but also the labyrinth of procedural rules and inflexible deadlines that must be met, or risk the courtroom doors closing permanently. In a legal system grounded on principles of equal protection and due process, such a critical factor would naturally be expected to have some basic uniformity across the country or, failing that, at least within the states and in federal court among the districts and circuits. But nearly the opposite is true: The only aspect of capital defense that is uniform is its variability. The quality of capital defense counsel, as well as the funding for the defense effort, changes widely and erratically based on location. This variance is found not only between states and federal districts but also on a level as granular as between counties. Such variations inject significant arbitrariness and undermine the reliability and integrity of capital punishment in the United States.

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