Capital Punishment in America Ineffective Assistance of Counsel and the Fallacy of Fairness

Capital Punishment

An Overview

Currently, 31 states, the federal system and the military employ the death penalty. Of those, five states contained 60% of inmates on death row: California, Florida, Texas, Pennsylvania, and Alabama. See

California, Texas, Pennsylvania, Florida, and Alabama: number of prisoners sentenced to death as of 2013.

From the reinstatement of the death penalty by the Supreme Court in 1976 to 2012, 82% of executions in the United States took place in the south. See

Statistics from Amnesty International.

However, since 1977, the majority of inmates sentenced to death have not been executed. Between 1977-2013, only 17% of death row inmates were executed. 40% of those inmates received "other dispositions," including successful appeals of the sentence, conviction, or state capital sentence, commuting of the sentence, or other unknown removals. Six percent died by causes other than execution. The remainder await execution -- as of 2013, the average number of years under sentence of death nationally was 14.6 years. See

Data from the Bureau of Justice Statistics, which is part of the U.S. Department of Justice and tracks crime and criminal justice data over time and across the United States.
Data from the Bureau of Justice Statistics, which is part of the U.S. Department of Justice and tracks crime and criminal justice data over time and across the United States.

Counsel in Capital Cases

Capital defense is a complex and specialized practice. A competent attorney often makes the difference between whether or not a defendant is sentenced to death.

The American Bar Association (ABA) found that “defense counsel competency is perhaps the most critical factor determining whether a capital offender/defendant will receive the death penalty.”

The ABA further noted that a “comprehensive 2000 study shows definitively that poor representation has been a major cause of serious errors in capital cases as well as a major factor in the wrongful conviction and sentencing to death of innocent defendants.” In an extensive 2010 report, the ACLU reiterated the problem that in many capital cases the quality of counsel was a "disgrace to the legal system."

"The most fundamental element of fairness in an adversary system of justice is representation of the accused by competent counsel." —Stephen B. Bright

The problem is pervasive: most defendants accused of capital crimes do not have access to effective counsel. The majority of capital defendants cannot afford an attorney and must rely on the state to appoint or provide one. For these defendants, there are three possible routes of representation: by established state or local public defender service, by contract counsel, or by private assigned counsel. Public defender services are widely regarded as the best option, because they provide the closest estimation of the resources or a prosecutor's office. Attorneys are retained full time, have staff, and have institutional knowledge and support. By contrast, private assigned counsel and contract counsel attorneys generally take cases on the side and are not always full-time criminal attorneys. In Alabama, private assigned counsel have included tax attorneys.

Currently, a number of states do not have state-wide public defender services. This means that the level of representation a defendant receives can vary by state and by circuit. Thus, a poor capital defendant’s chance of success may turn on the location in which she is indicted: a defendant in Alabama may receive a first-time capital defense lawyer while a luckier defendant in Colorado may benefit from one of the best public defender offices in the country.

Among the states without state-wide or even majority circuit public defender offices are Texas and Arkansas, two of the largest death penalty states. The Texas Defender Service found in a 2002 report that inmates sentenced to death "face a one-in-three chance of being executed without having [their] case properly investigated by a competent attorney or without having any claims of innocence or unfairness heard."

In Pennsylvania, A Reading Eagle investigation found that in the decade before 2015 "nearly 1 in 5" indigents were represented by an attorney who had been disciplined for professional misconduct, the majority of whom "had been found by Pennsylvania courts to be ineffective in at least one capital case."

Similarly, "of the death sentences imposed in Caddo Parish, Louisiana, since 2005, 75 percent of the cases involved at least one defense lawyer who, under the new case representation standards, is no longer certified to try capital cases in Louisiana."

These statistics demonstrate the unfairness underlying imposition of the death penalty. As Stephen B. Bright notes, "death sentences have even been imposed and upheld in cases in which the defense lawyers were asleep, intoxicated, or under the influence of drugs."

Spotlight on the Worst "Offenders"


Alabama remains the only state that does not provide state-wide funding for post-conviction processes and appeals for capital defendants. Alabama has no state-wide public defender service, instead the majority of Alabama’s circuits appoint private counsel to represent defendants. Counsel is appointed by the court or circuit “with little or no oversight.” This means that defense attorneys are often subject to political pressures and are more concerned with placating the judge who may appoint them than in zealously defending their client. In a 2006 Assessment Report of Alabama's death penalty, the American Bar Association found Alabama's defense services to be well below ABA standards. The majority of Defense Services and Post-Conviction Proceedings were in violation of ABA recommendations, including the recommendation that the state should appoint post-conviction counsel whose qualifications are consistent with ABA guidelines.

[Non] Compliance information from the ABA's 2006 Alabama Death Penalty Assessment Report.

Appointed counsel in Alabama are also shockingly underpaid for what should be an expensive and time-consuming process. Capital attorneys are paid $70 an hour. Compensation is often capped, resulting in lawyers working fewer hours, foregoing important investigation expenses or experts, or getting underpaid for their work. The ABA has noted in regard to Texas that “caps on compensation are improper” for this very reason. Lawyers have been paid what amounted to $4.98 per hour to represent a capital defendant.  All too often, attorneys aren’t paid for all of their work.

By contrast, Federal Defenders are paid $178 per hour in capital cases as of 2010. The Subcommittee on Federal Death Penalty Cases for the Committee on Defender Services of the Judicial Conference of the United States recommended at least $125 minimum an hour for capital defense attorneys in 1998, which adjusted for inflation would be about $187. The committee reached this minimum because otherwise death penalty qualified attorneys, who “are generally among the most experienced and respected criminal practitioners,” would “not be willing to accept appointment to federal death penalty cases at [lower] hourly rates.”

Further, “Alabama’s required qualifications for capital defense counsel fall far below the American Bar Association’s guidelines for the appointment of defense counsel for death penalty cases. Alabama merely requires five years’ prior experience in the active practice of criminal law—with no distinction as to kinds of cases litigated or kinds of criminal law practiced.”

All of this results in criminally poor representation for capital defendants in Alabama. In Jefferson County, Alabama, the Fair Punishment Project found that of 18 capital cases decided on direct appeal between 2006 and 2015, “defense lawyers presented less than one day’s worth of mitigation evidence in every single case, and in one case no mitigation evidence was presented.” Mitigating evidence is an incredibly important aspect of a capital defendant's trial because it is what ultimately convinces the jury not to apply the death penalty, even if the defendant is found guilty.


Texas remains one of the states with the highest death sentence rates and the worst representation of capital defendants. A survey by the Texas Defender Service of the 1,060 capital direct appeal decisions from 2005 to 2015 in Texas showed that capital defendants in states other than Texas are 2.8 times more likely to have their case reversed on appeal than those in Texas.

Most capital defendants in Texas are represented by court-appointed attorneys for direct appeals, as they cannot afford a private attorney and only two Texas defender offices handle direct appeals in capital cases. The ABA recommends at least two lawyers represent a capital defendant in appeals. However, in most cases, Texas appoints only one.

[Non] Compliance information from the ABA's 2013 Texas Death Penalty Assessment Report.

The Texas Defender Service also found that Texas defense lawyers spend less time on direct appeals than do attorneys in other jurisdictions the average in other jurisdictions is 500-1000 hours billed per case, whereas for the cases in Texas the range was 72 to 535 hours billed, with an average of 275 hours per case.

Many jurisdictions in Texas also cap the total compensation, such that attorneys who work more hours on a capital case get paid an insufficient amount per hour. As a result, appointed attorneys take on incredibly high case loads, to the detriment of their clients. The ABA considers caps and flat fee improper in capital defense cases because it drives away qualified attorneys and “poses an unacceptable risk that counsel will limit the amount of time invested in the representation in order to maximize the return on the fixed fee.”

The Texas Defender Service also found that in 33.7% of the capital cases, attorneys failed to brief an issue, resulting in the loss of colorable claims. Worse, “over half of the briefs” in the study contained recycled text lifted from other briefs, a sanctionable offense in other states. This means that lawyers are not analyzing the unique facts of the case and tailoring the defense for that defendant.

In one such brief, counsel included in a footnote: “Counsel for the Appellant makes no claim that he drafted this argument rather Counsel expects that arguments of this type are boiler plate language in Appellate briefs in death penalty cases.”

"Counsel. . . makes no claim that he drafted this argument rather Counsel expects that arguments of this type are boiler plate language in Appellate briefs." — footnote by counsel in an appellate brief

Further, many of these lawyers may not be communicating properly with their clients. The study found that at least “[t]wo defendants wrote to the CCA to report that they had not heard from their lawyer; [and] three defendants wrote that their appellate lawyer filed a brief without consulting them.”

In Houston alone, three people have been sentenced to death in trials where their lawyers slept. In one such case, the judge responded, “The Constitution does not say that the lawyer has to be awake.” One of the defendants has since been executed.

"The Constitution does not say that the lawyer has to be awake."

Another lawyer in Houston has missed the appeal deadline in two different federal habeas corpus cases, but continues to represent capital defendants. In Harris County, Texas, over 100 people have been executed. Stephen Bright explains, that “[t]he reason is no secret: Harris County judges appoint incompetent lawyers to represent people facing the death penalty and, after they are sentenced to death, the condemned are assigned equally bad lawyers to represent them in post-conviction proceedings. There is not even the pretence of fairness.”


Arkansas is not typically considered in the worst offenders. The states is not among the top 15 states with the highest prisoners under sentence of death and has executed fewer inmates than other death penalty states. However, the state plans to execute eight men in ten days starting April 17, 2017.

The Fair Punishment project found that for these eight inmates, “the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest.”

In at least five of the inmate’s cases, the jury heard no mitigating evidence, even when it was available.

For Jack Jones, one of the death row inmates, his trial lawyers spent a total of only 6,641 dollars to prepare his defense. His trial lawyers also called a medical expert who had previously lost his medical license for a year, and whose medical license was subsequently stayed when the medical board “bec[o]me mentally incompetent to practice medicine to such an extent as to endanger the public.” His expert testified that he knew Jones “was not bipolar because he was bipolar himself.”

For another inmate, Ledell Lee, his defense counsel filed a motion citing “intolerable conflict” between the attorneys and Lee, but the judge refused to remove Lee’s counsel from the case. Lee’s counsel for his post-conviction was similarly inadequate – his attorney had a substance abuse problem that left him “unable to locate the witness room,” unfamiliar with his own witness, and “rambling incoherently, repeatedly interjecting ‘blah, blah, blah,’ into his statements.” When Lee finally received new counsel, they missed the filing deadline for his appeal, failed to comply with court rules, and ignored Lee’s phone calls and letters. Following change of counsel, Lee received another incompetent lawyer, who was then suspended from the practice of law after he surrendered his legal license “to prevent possible harm to clients” because he was suffering from mental illness.

Why the Blind Eye?

Both the anecdotal and statistical evidence of the systematically appalling representation given to capital defendants is powerful and moving. And yet, the majority of the public is neither informed nor moved. Articles on the subject make their rounds through papers and magazines, but many people seem comfortable accepting the current state of affairs. This is evidenced in the paltry funding afforded by state legislatures—beholden to their constituents—to capital defense and defense in general. For many, this may be because they have pre-judged the defendants. In the court of public opinion, they have already been convicted of horrific crimes and therefore are subhuman and deserve fewer protections. As dispositionalist actors, they have brought it upon themselves. The fallacy of pre-determining guilt allows the public to care less when the “guilty” are denied a fair trial, after which they are found guilty. Once guilty, whether or not they were appropriately defended against a sentence of death is easy to disregard. Capital defendants are the ultimate “out group,” and their alleged actions are used to justify their treatment.

The Supreme Court has been similarly resistant to focusing on this space. The Sixth Amendment provides the right to counsel for criminal defendants and Gideon v. Wainwright requires that those defendants who cannot afford counsel be provided it. However, the Supreme Court has yet to set a meaningful bar for the quality of that counsel. In rare cases defendants can demonstrate constitutionally ineffective prior counsel, but to do so requires showing both cause and prejudice, which the Court has made increasingly difficult. As Justice O’Connor explained in Strickland, the case laying out the current test, “the purpose of the effective assistance [of counsel] guarantee of the Sixth Amendment is not to improve the quality of legal representation.” Rather, the focus in on “reliability.” But why not focus on actual fairness, when the quality of representation in certain jurisdictions ranges so low that attorneys for capital lawyers are falling asleep at trial, systematically failing to put on mitigating evidence, or ignoring their clients’ calls? It seems that the Court is allowing systemic injustice to continue in order to keep the legitimating narrative that exists around capital, and all criminal, trials. The level of representation we see if constitutionally sufficient. Therefore, it is fair. Therefore, these outcomes are legitimate. The level of representation necessary for all cases to be truly fair is so much higher than the the current state that for the Court to require better representation would delegitimize a significant portion of capital cases — so significant, that it would bring into question the system itself. The Court is not willing to do this. As Justice Brennan reflect in dissent in McCleskey v. Kemp, it seems to reflect a fear of “too much justice.” It’s easy to prioritize the system over those who are subjected to it when those subjects can be described as “terrible criminals,” convicted for horrifying acts. It’s noticeable that in those cases where the Court holds that representation was acceptable—despite egregious behavior by counsel—the Court also spends more time recounting the often bloody and chilling details of the crime. Dehumanizing and othering the inmates makes it easier for the Court to sacrifice them for the legitimating narrative of fairness.


Created with images by meeshypants - "barring freedom"

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