Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-Conviction Proceedings

40 Pages Posted: 6 Jan 2006 Last revised: 5 Aug 2015

See all articles by Eric M. Freedman

Eric M. Freedman

Hofstra University - Maurice A. Deane School of Law


Giarratano v. Murray, 492 U.S. 1 (1989) rejected the claim of a Death Row inmate that he had a constitutional right to the appointment of counsel to assist him in pursuing state post-conviction remedies. The thesis of this article, stated in Part I, is that, like Bowers v. Hardwick, 476 U.S. 186 (1986), before it was overruled by Lawrence v. Texas, 539 U.S. 558 (2003), Giarratano is dead - a scarecrow.

Part II reviews the Giarratano litigation, noting several of the questions that the Supreme Court left unaddressed. Part III describes the subsequent actions of the states, actions that have considerable legal significance. Today every active death penalty state except Alabama provides for the pre-filing appointment of counsel to assist indigent Death Row inmates in the preparation of post-conviction petitions challenging their convictions and sentences.

Part IV posits that Giarratano has been much overread. The controlling opinion of Justice Kennedy does recognize that capital post-conviction petitioners have a right to counsel in certain circumstances - and those circumstances exist in today's world.

Part V focuses on due process issues. Part V (A) notes that the Court should have applied the procedural due process framework of Mathews v. Eldridge, 424 U.S. 319 (1976), but did not. Had it done so, or were it to apply its more recent analysis of the due process right to counsel with respect to criminal proceedings (or to revive its older one based on equal protection), the constitutional right would be secure. Moreover, Part V (B) argues, the decision of the states to create statutory entitlements provides an independent source of due process protection against their arbitrary deprivation.

Part VI discusses the Eighth Amendment and the changes in the legal and factual environments since Giarratano. These changes show the case to be inconsistent with contemporary standards of accuracy respecting capital determinations.

Part VII considers whether Giarratano would pass muster under the legal norms applicable to the democracies of Europe and concludes that it would not.

Part VIII concludes by urging judges, lawyers, and legislators to recognize the reality that Giarratano is a lifeless husk and calling upon the Supreme Court to inter it.

Keywords: death penalty, Giarratano, post, conviction, counsel, capital, punishment

Suggested Citation

Freedman, Eric M., Giarratano is a Scarecrow: The Right to Counsel in State Capital Post-Conviction Proceedings. 91 Cornell L. Rev. 1079 (2006), Hofstra Univ. Legal Studies Research Paper No. 06-7, Available at SSRN:

Eric M. Freedman (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5167 (Phone)
515-463-5129 (Fax)

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