Fewer Risks, More Benefits: What Governments Gain by Acknowledging the Right to Competent Counsel on State Post-Conviction Review in Capital Cases

Abstract

The acknowledgment that there is a right to the effective assistance of counsel in state post-conviction proceedings would serve the interests of the state and federal governments. Most death penalty states have already decided to provide capital post-conviction counsel but by failing to insist that the representation be competent they have forfeited procedural advantages they would otherwise enjoy in federal habeas corpus litigation, shifted unwarranted costs to the federal government, incurred serious litigation risks for the future, and impaired both the efficiency and the fairness of their systems of criminal justice.

Keywords: Giarratano, death penalty, right to counsel, habeas corpus, collateral review, post-conviction review