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.
Modern Death Penalty Rulings
In 1972, in Furman v. Georgia, the U.S. Supreme Court struck down the death penalty system nationwide, finding that it was imposed in an arbitrary manner, like being “struck by lightning,” which the Court found to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In the wake of Furman, several states revised their death penalty protocols, splitting the trial into separate guilt and penalty phases and adopting statutory lists of “aggravating factors” that must be present in a case before the defendant could be eligible for the death penalty.
Four years after Furman, the Court upheld one such revised protocol in Gregg v. Georgia, leading to a revival of the death penalty. The Court found that the death penalty was constitutional based on an assumption that it could be administered in a precise, deliberate manner, free of the arbitrariness that had defined capital punishment for centuries. Statistics on many fronts show that this has not come to pass, with the death penalty facing particular scrutiny from critics noting the geographic disparity in its use. While 29 states, along with the federal government and the U.S. military, currently have laws permitting the death penalty as a possible punishment, 16 of those 29 have not carried out an execution in the last five years. On the county level, the disparity is even greater. Studies show that 2 percent of U.S. counties are currently responsible for most cases leading to executions since 1976, along with most of today’s death row population and new death sentences.
Since Gregg ushered in the modern capital punishment era, many opinions of state and federal courts have also defined the boundaries of what is allowable in the death penalty. The Supreme Court, however, has continually declined invitations to revisit the constitutionality of the death penalty itself. The nearest the Court has come to tackling the larger question of the death penalty in recent years came in the form of a dissent authored by Justice Stephen Breyer in Glossip v. Gross (2015), a case involving a facial challenge to the constitutionality of lethal injection protocols. Justice Breyer’s long dissenting opinion went beyond the narrow issue presented to question whether it was time for the Court to revisit the constitutionality of the death penalty generally. Large portions of the opinion looked to data on reduced use of capital punishment across the United States and, in particular, narrowing use of the death penalty to a handful of U.S. counties. Reciting several factors that have led to unequal use and application of the death penalty across the United States, Justice Breyer reached the following conclusion:
Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as “egregiousness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.
Factors Behind the Imbalance
A number of factors have been identified as responsible for this striking geographical imbalance, including shifts in public opinion and prosecutorial charging patterns. The wide latitude afforded to prosecutors to seek the death penalty in any given case means that the election of a particularly death-prone prosecutor can produce a dramatic uptick in new death cases in a short span of time; and by the same token, a prosecutor who rarely, if ever, seeks the death penalty can cause new death sentence numbers to plunge. Similarly, shifts in both national and local public opinion can result in juries that are more or less likely to return a death sentence.
By their nature, these types of factors have the most direct impact at the start of a capital case, influencing whether a death sentence is imposed, and have far less influence over whether the prisoner is executed. A striking percentage of death sentences are overturned, and in some jurisdictions a death row prisoner is far more likely to die of natural causes in prison than to be executed by the state. Factors influencing whether an execution is carried out have also been studied in detail; a complex mix of legal, political, and societal variables are identified as playing a role. By contrast, the quality of representation has the power to influence the trajectory and outcome of a capital case from start to finish.
From the earliest stages of arrest and charging, when there is a limited window to gather evidence and negotiate a plea, to the final days of a capital case, when a lawyer must litigate issues related to the method of execution and seek clemency, and at every stage in between, the quality of representation has life-or-death consequences for the capital defendant. Justice Ruth Bader Ginsburg has observed, “People who are well-represented at trial do not get the death penalty.”
In spite of its critical importance, representation receives little attention outside academic circles, death penalty experts, and the capital defense practitioners who must contend with its effects daily. The quality of representation provided to a person facing the death penalty is neither as visible as prosecutorial charging patterns nor as easily quantifiable as public opinion polls. Yet, the representation provided to a capital defendant is often the most important determining factor between life and death.
As a result of its relative obscurity, the sheer volume of work and resources required to provide adequate representation in a capital case is not well understood, and neither is the reality that having a lawyer with the proper skills and training is not enough. Whether at trial or in post-conviction, representing a person facing a death sentence requires a team that, at minimum, consists of two capitally trained and qualified attorneys, a fact investigator, a mitigation specialist, and a person trained to screen for mental disorders, along with any additional experts and investigators with expertise related to the specific issues in the case. That team has a duty to conduct an exhaustive investigation into issues relating to both the facts of the crime—often involving complex issues of forensics and eyewitness testimony—and the client’s social, psychological, medical, and family history (extending several generations in both directions), which will support the case the lawyer will make for why his or her client does not deserve the death penalty.
In post-conviction proceedings and at each later stage, the challenges continue to multiply. For a prisoner to have any realistic hope of obtaining relief from an unlawful conviction or death sentence, his or her counsel must conduct a thorough and independent reinvestigation of the facts related to both guilt and penalty and must review the case files and record made by predecessor counsel. Not only this, but post-conviction counsel also bears the burden of proving both an error of constitutional magnitude and (with rare exceptions) that the outcome of trial or sentence likely would have been different if not for that error. This monumental task is made all the greater by a system designed to search for any plausible reason not to disturb the outcome of a trial, placing greater weight on technical procedural rules than the merits of a claim.
The extraordinary challenges in representing a person facing the death penalty are reinforced by studies showing that adequate representation requires many hundreds to thousands of hours of intensive work by the core defense team along with extensive expert and ancillary assistance. The time of expertly trained attorneys, legal professionals, experts, and investigators translates into significant costs. And yet, there is no consistent and reliable method for funding the defense effort in indigent defense systems throughout the United States. At best, funding is provided on a statewide level, creating large variations in the adequacy of representation from one state to the next. For example, in Alabama during the height of capital prosecutions in the 1990s, defense counsel was paid $20 an hour for out-of-court work, $40 an hour for in-court appearance, with a flat cap of $1,000 per case. By comparison, in neighboring Georgia, the hourly rate was up to $60 with no cap; across the northern border in Tennessee, the rate increased to $100. The differences in funding of representation are found not only when comparing one state with another. In some states, the full cost of public defense must be borne by (and subject to the funding limitations of) the individual counties, causing the widespread variability found between states to be present within the states as well. Even in jurisdictions without funding caps or overly restrictive hourly rates, local judges often have virtually unlimited discretion to set rates and approve or reject defense funding requests.
The System Gets What It Pays For
This lack of consistency in resources generates a predictable and corresponding variability in the quality of representation and provision of due process in capital cases. The commentary to the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases aptly observes, “For better or worse, a system for the provision of defense services in capital cases will get what it pays for.” This is not to say that every capital defendant or prisoner receives poor representation. Some jurisdictions have made great strides in recent years toward improving the funding allocated to the defense effort, while others lag behind. And throughout the United States, the capital defense bar consists of some of the most talented, dedicated lawyers in the country. But even the greatest lawyer cannot provide effective representation to a client if the lawyer does not have the proper time to devote to the case or the proper resources to hire necessary experts and investigators. And jurisdictions that do not provide the necessary compensation are almost certain to be unable to maintain an adequate pool of attorneys with the proper qualifications and training from which defense counsel can be appointed. Thus, the quality of representation—and corresponding access to justice—for an individual facing a death sentence often varies wildly based on something as arbitrary as a state, county, or district line.
For example, in Florida in the mid-2000s, the state conducted an “experiment” with its post-conviction counsel system. The state abruptly defunded the office that provided representation to prisoners on death row who wished to challenge the constitutionality of their convictions or sentences and whose cases originated in the northern part of the state. The northern region office, and that office alone, was replaced with a “registry” system of private counsel, while the middle and southern region offices were left intact. Florida death row prisoners whose cases originated in the northern district went from representation by a team that included experienced career capital defenders and staff investigators and mitigation specialists to representation by a single appointed attorney in private practice with minimal funding and lacking any institutional support and resources. This experiment continued for about 10 years, during which time dozens of Florida death row prisoners lost their access to the courts as their under-resourced appointed counsel failed to meet filing deadlines or properly raise claims. In the end, the registry experiment was declared a failure, with one former Florida Supreme Court justice declaring that it resulted in “some of the worst lawyering” he had ever seen. The regional state-funded office was re-created and resumed handling capital post-conviction cases originating in the northern district, but those who lost their claims and access to judicial review simply because they had the misfortune of having a case that originated in the northern third of the state saw no relief. Some of those prisoners have now been executed without review of the merits of their claims, and many more await the same fate.
Problems with geographic disparity in the provision of resources are not limited to southern states in the “death belt.” Pennsylvania, which currently has 160 prisoners on its death row, relies on a county-by-county system of indigent defense. Courts and lawmakers alike have observed that this structure injects unreliability and inequality into the state’s capital punishment system. A 2018 Joint State Government Commission study concluded that the lack of adequate funding in several counties had resulted in poor-quality representation, often leading to reversal of death sentences on appeal. It found that among prisoners sentenced to death in Pennsylvania since 1978, 150 had their convictions or sentences overturned. The report identified “inadequate remuneration of assigned counsel” as a cause of poor-quality representation and concluded that “to avoid justice by geography,” a statewide system of capital defense was needed. As it currently stands, from trial to execution, the type of representation a Pennsylvania defendant receives and the trajectory of his or her case is determined largely not by the facts of the case but by the location of the court that holds jurisdiction over that case.
Similar issues exist in central and western states as well. Until the 2016 creation of the Indigent Defense Commission to oversee and provide supplementary state funding for indigent defense, Utah followed a model like Pennsylvania’s, in which each county was responsible for funding its own system. Most Utah counties neglected to fund an institutional public defender at all, leaving indigent defense to proceed through case-by-case contracts. In Juab County, one of Utah’s poorest, a single attorney represented all the county’s indigent defendants until 2016. For capital appeals, the Utah system remains a patchwork. While many Utah counties pay into a program called the Aggravated Murder Defense Fund (an insurance policy of sorts to pay for direct appeal representation), a handful of counties—Salt Lake, Weber, Summit, Wasatch, and Utah—do not. In one Weber County capital case, when the appointed appellate attorney spoke out about the lack of funding he was receiving, all his contracts were abruptly terminated.
Such problems are not unique to the state system or state courts. A recent multiyear intensive study ordered by the U.S. Courts revealed that the federal death penalty and federal defender program suffer from the very same issues. This is true both in the limited set of capital cases that originate in federal court and the more numerous state cases that are heard by federal courts when prisoners seek writs of habeas corpus. Variation in practice between courts and even among judges results in widely varying quality of representation. A report based on this study made a call for standardization of payment practices and the creation of regional offices dedicated to capital defense to ensure uniform and high-quality representation in federal courts in capital cases.
These examples are far from exhaustive. Issues with the quality of representation and inequality of funding across courts and jurisdictions can be found in virtually every place in the United States that retains the death penalty. Many other calls have been made for the creation of regional or statewide defender offices to reduce that disparity and to increase the efficiency of indigent defense systems, but such efforts are often politically unpopular as they require an outlay of funding at the state level. And even where such offices have been created, the legislature and the courts hold enormous power over year-to-year or case-to-case funding decisions. Without binding standards that ensure equality of resources across jurisdictions and among cases, these problems are almost certain to persist.
How to Change the System
With few exceptions, the fact that the death penalty varies widely based on geography has thus far had limited sway in state and federal courts. Equal protection arguments face significant obstacles, not least of which is a body of case law that, with few exceptions, holds that disparate treatment of a state’s citizens based on where those citizens are located does not violate the Constitution. Eighth Amendment arguments face obstacles too; many federal courts have signaled comfort with the idea that the death penalty is a local issue, with locally different results. A Sixth Amendment claim might get better reception. Geographic disparity in representation, which of course is interrelated with the Eighth and Fourteenth Amendment arguments, might be a promising claim given the robust precedent protecting the Sixth Amendment right to counsel.
However strong the legal theory may be, though, lawyers seeking to advance such arguments are often hamstrung by a lack of data that could provide the factual support for a systemic claim. Unlike examples of geographical disparity in representation, readily available, system-wide data are almost nonexistent. Even the exhaustive, multiyear Joint State Government Commission study in Pennsylvania, which also tried to gather information from capital jurisdictions throughout the United States, was forced to conclude that “[t]here is no data to use to systematically evaluate the delivery of [indigent defense] services.”
At a time when access to data is increasing at a rate sometimes compared to the Cambrian explosion in evolutionary biology, it might seem shocking that there is such a dearth of information about this critical aspect of our criminal justice system. Many factors are responsible for this apparent anomaly, including the historical lack of electronic court records and the need for confidentiality of funding information in individual cases. Data about funding provided to capital defense teams are held in thousands of local courts across the country, and much of the data exist only in paper records. In addition, data about funding are often sealed, consistent with the ABA death penalty case guidelines’ instruction that all funding requests submitted to the court should be made ex parte and under seal, to avoid revealing defense strategy. These hurdles are surmountable, but they highlight the need to invest significant resources in a coordinated effort to obtain the information while minding the need to protect privacy.
Gathering data will proceed slowly; meanwhile, capital cases continue to proceed through this unequal system of indigent defense. In addition to their role in seeking systemic improvements, lawyers possess the power to help balance the scales case by case through pro bono representation. Pro bono cannot serve as a solution to the overarching problem or replace a well-functioning system of indigent defense, but it can make a life-or-death difference for an individual facing the death penalty.
For nearly 35 years, the ABA has engaged members of the private bar to provide high-quality pro bono counsel in capital cases. These remarkable lawyers have saved the lives of dozens of people on death row who otherwise would have been executed due in large part to the unavailability of qualified counsel and resources. This list includes people whose original trials were marred by serious constitutional error, people with intellectual disability, and prisoners who were wrongfully convicted and would have otherwise been executed for a crime they did not commit. In cases placed with pro bono volunteers through the ABA since 1998, more than 100 individuals have been spared from death after their pro bono lawyers proved serious constitutional error or innocence. Add to that the hundreds of other ongoing cases, many of which have won a grant of relief in the form of a new sentencing or new trial, and the work of these lawyers is a true testament both to the power of pro bono and the importance of adequate resources.
Scott Blystone, for example, was incarcerated on death row in Pennsylvania for over three decades following his trial in Fayette County, which has one of the most chronically underfunded public defense offices in Pennsylvania’s county-by-county system. His appointed public defender, who had less than a year of experience, failed to present any mitigating evidence on his behalf, essentially forcing the jury to choose death. During the post-conviction process, Blystone’s attorneys, including a career capital defender with the highly regarded Defender Association of Philadelphia and a pro bono team from Steptoe & Johnson, investigated and presented the mitigation case that should have been part of Blystone’s trial, including evidence of brain damage and a history of mental illness. The federal district court vacated Blystone’s death sentence, citing trial counsel’s ineffective assistance, and prosecutors ultimately chose not to pursue another capital trial.
Another example comes from Mobile County, Alabama, where William Ziegler was released from prison in 2015. Pro bono lawyers from Sidley Austin represented Ziegler in his post-conviction proceedings. Without Sidley, Ziegler could have been left without any representation in his post-conviction challenge: The federal constitution does not require it, and state law gave Ziegler’s judge the authority to deny appointment of counsel. As a direct result of their extensive commitment of time and resources to investigating and presenting Ziegler’s case, Sidley attorneys persuaded the trial court to vacate the death sentence. The court issued a scathing 218-page opinion that detailed dozens of instances of deficient performance by trial counsel. After prosecutors declined to seek the death penalty again, the court resentenced Ziegler to time served.
There are hundreds of stories just like these across the country, with pro bono counsel from every size and type of practice (including many litigators who had last encountered criminal law during their first year of law school) using their talents and resources to expose grave miscarriages of justice in capital cases. Their efforts and successes have shown time and again that fairness and accuracy are gravely compromised in a system that fails to provide adequate defense services.
Perhaps the old adage needs to be refined: Capital punishment is punishment for people in jurisdictions without capital. It is largely a system of “justice by geography,” where the severity of punishment varies with the ability or willingness of jurisdictions to invest the necessary capital in indigent defense. Such geographic disparity ought to be of great concern, not only to administrators of capital defense systems and those representing capital defendants but to every person who cares about the integrity of the criminal justice system in our most serious criminal cases. Lawyers have the power to make change on both a systemic and individual level, by educating courts about the constitutional problems with such disparities, by helping to gather data to support arguments for reform, and by providing direct pro bono assistance to prisoners in need.
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