States Fail to Meet Critical Need ofIndigent Defendants -continued from front page tied. At the july 31, 1985 hearing where dissatisfaction over last-minute stays of his September 5, 1985 execution date There has been no action, execution, and the burden that they in­ was set, Washington's trial counsel however, in terms of funding or flict upon judges. moved to have new counsel appointed actual recruitment in most "Death Professor Anthony G. Amsterdam to represent him in connection with any of New York University, a leading capi­ habeas corpus proceedings, and the mo­ Belt" states, with the exception of tal punishment theoretician, criticized tion was denied. This left him without an Florida. justice Powell for not recognizing that attorney to pursue post-conviction pro­ the system, described by Powell as "per­ ceedings on his behalf. By late August, missive" and one which "permits the his date with the executioner was only necessary expertise, or by overburdened now familiar abuse of process," serves a two weeks away and he had not yet be­ lawyers from public interest legal pro­ beneficial purpose to be balanced against gun either state or federal habeas corpus jects. Some are afforded no representa­ the cost of delay. Only two weeks be­ proceedings. tion at all. fore justice Powell's speech, the Su­ With the clock ticking, frantic ef­ Some state government officials feel preme Court heard argument in Barefoot forts were made by Marie Deans of the that to execute someone who does not v. Estelle, 463 U.S. 880 (1983). The Virginia Coalition on jails and Prisons, have an attorney would cause a "black NAACP Legal Defense Fund presented the NAACP Legal Defense Fund, and eye" for their state. Largely because of evidence in an amicus curiae brief show­ others to find a volunteer attorney for this potential embarrassment to the ing that between 1976 and 1983, federal Washington. Pleas for lawyers were sent state and to the legal profession, a few courts of appeals had decided a total of as far as New York, Washington, D.C., state bars and legislatures have belatedly 41 habeas appeals, and had ruled in favor and Chicago, but all were rejected. launched studies of the problem. There of the death row prisoner in 30, or Washington sat awaiting his execution. has been no action, however, in terms of 73.2%, of them. Finally, attorneys at Paul, Weiss, Rifkind, funding or actual recruitment in most "Contemplate what this means," Wharton & Garrison in New York un­ "Death Belt" states, with the exception says Amsterdam. "In every one of these dertook a last-minute emergency effort of Florida. [See CCR story, this issue, cases, the inmate's claims had been re­ to obtain a stay, and were successful. p. 6] Despite slight movement to meet jected by a state trial court and by the Earl Washington's situation is unfor­ the pressing need, the situation has not state's highest court, at least once and tunately not unique. Many individuals improved. In fact, it has deteriorated often a second time in state post-convic­ who have been sentenced to death are due to the rising numbers of people sen­ tion proceedings; the Supreme Court unable to obtain a lawyer for the final tenced to death, mounting executions, had usually denied certiorari at least once stages of their appeals, and are now in and the dwindling number of attorneys and sometimes twice; and a federal dis­ danger of being executed without having willing, or able, to handle capital cases trict court had then rejected the in­ exhausted the appeals provided by law. during collateral proceedings. mate's claims of federal constitutional This is happening not for lack of claims This "system" of representation has error infecting his conviction and/or to be brought, but because the prisoners also resulted in chaos and disarray in the are too poor to pay lawyers to bring courts. Often a lawyer is found only at them. Of the 1,911 death-sentenced in­ the last minute. In the rush to prepare mates, 99.5% are indigent. the case, important issues may be over­ Under the federal habeas corpus looked Or necessary investigation may L statute, a death row inmate has the right not take place. Courts are required to OF THE to petition the federal court to review make judgments about life and death NATIONAL PRISON PROJECT his or her case to determine whether matters on short notice and on an emer­ there has been a violation of the Consti­ gency basis. judge john Godbold of the Editor: Jan Elvin tution durin( arrest, trial, conviction or Eleventh Circuit Court of Appeals has Editorial Asst.: Betsy Bernat sentencing. Indeed, the dire conse­ pOinted out that these emergency pro­ quences of the death penalty demand ceedings are then misunderstood by the Alvin J. Bronstein, Executive Director rigorous judicial scrutiny. public, while imposing tremendously dif­ The National Prison Project of the While many states provide lawyers ficult demands on both counsel and the American Civil Liberties Union Foundation 1616 P Street, N.W. to poor people sentenced to death dur­ courts. Washington, D.C. 20036 ing the trial phase and on direct appeal Former Supreme Court justice (202) 331·0500 to the state supreme court, representa­ Lewis Powell, in a 1983 speech to the The National Prison Project is a tax--exempt foundation~ tion ends after the sentence has been Eleventh Circuit judicial Conference, funded project of the AClU Foundation which seeks to strengthen confirmed on automatic appeal to the complained of persons convicted "five or and protect the rights of adult and juvenile offenders; to improve overall conditions in correctional facilities by using existing ad­ state supreme court. It is then up to the six years ago" having "their cases of re­ ministrative, legislative and judicial channels; and to develop al­ indigent inmate to locate a lawyer to petitive review move sluggishly through ternatives to incarceration. The reprinting ofJOURNAL material is encouraged with the I prepare a petition for a writ of habeas our dual system." He also expressed stipulation that the National Prison ProjectJOURNAL be credited corpus. As a result, many are repre­ with the reprint. and that a copy of the reprint be sent to the sented by volunteer lawyers who lack editor. 'Remarks of Lewis F. Powell Jr., former Associate The JOURNAL is scheduled for publication quarterly by the Justice, Supreme Court of the United States, Elev" National Prison Project. Materials and suggestions are welcome. The National Prison ProjectJOURNAL is designed by James Jon Elvin is the editor ofthe enth Circuit Judicial Conference, Savannah, Geor­ True,lnc. NPPJOURNAL gia, May 8-10, 1983. 2 SUMMER 1987 Death Penalty Proceedings death sentence. Yet in over 70% of the held that prisoners are entitled to the cases, a federal court of appeals found appointment'of counsel upon request to merit in one or more of the inmates' assist in habeas corpus proceedings in claims. These figures surely suggest that state courts. judge Merhige also ordered the 'repetitive review' condemned by the state, with 33 men on death row, to justice Powell is not entirely without develop and inwlement a plan to prOVide justification or social benefit in a society lawyers for indigent prisoners. In his which prefers not to kill people in viola­ opinion, Merhige wrote, "The stakes are tion of its fundamental laws. Yet not a simply too high for this court not to word of this does justice Powell grant, at least in part, some relief. In breathe."2 view of the scarcity of competent and According to the American Bar As­ willing counsel to assist indigent death sociation's (ABA) Section on Individual row inmates in the exercise of seeking Rights and Responsibilities, the rate of post-conviction relief, some relief is both reversal has declined slightly since 1983, necessary and warranted." but the death penalty is still rescinded in Virginia was ordered to prOVide more than 55% of the cases. death row prisoners with trained legal justice Powell also omits any men­ assistance during capital post-conviction tion, says Amsterdam, of the fact that proceedings. Currently, death row in­ capital defense lawyers are, in almost mates obtain volunteer lawyers by con­ every case, either unpaid volunteers do­ tacting Marie Deans of the Virginia Coa­ nating hundreds of hours to these cases, U.S. Federal District Court Judge Robert R. lition on jails and Prisons. Deans has Merhige Jr. ordered Virginia to devise a plan or one of the small "corps of specialized which would provide lawyers to death row found it impossible to recruit from a pro bono death penalty defense law­ prisoners. shrinking number of attorneys willing tq yers." This is another "curious" omis­ volunteer for death row cases. sion, he says, given the amicus curiae fices - emotional as well as financial. jack Boger, former assistant legal brief filed in Barefoot by the ABA, which Prosecution of a single appeal on behalf counsel for the capital punishment proj­ stated that expedited appeals in capital of a person on death row frequently in­ ect of the NAACP Legal Defense and cases would "make incalculably more dif­ volves months of exhausting, seemingly Education Fund, Inc., testified in Giarra­ ficult the often thankless task faced by futile effort. One lawyer has described tano that post-conviction counsel must volunteer attorneys who have agreed to the process as a 'self-lacerating invest­ do a complete investigation of the represent penniless, death-sentenced in­ ment of time and energy.' To the attor­ client's background. He or she must also mates in federal habeas proceedings. neys willing to make such investments, obtain the services of mental health and Summary procedures that deprive coun­ again and again, I wish to express my ad­ other experts.