Protecting the Right to Effective Assistance of Capital Postconviction Counsel: The Scope of the Constitutional Obligation to Monitor Counsel Performance
80 Pages Posted: 3 Aug 2006
This article is an outgrowth of an idea developed by the author in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government's decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel's performance to ensure, to the extent possible, the actual delivery of competent assistance.
This article explores the scope of the government's constitutional obligation to monitor the performance of capital postconviction counsel. It explains that the due process-based meaningfulness requirement continues to govern the analysis, so just as the government must ensure that the right to capital postconviction counsel is meaningful, it must also ensure that the system of monitoring it employs is meaningful. The article examines four key aspects of monitoring and explains how to make each aspect constitutionally meaningful. The four aspects are: the proper monitoring entity, the proper monitoring standard, the type of information to look for during the monitoring process, and the proper method of gathering such information. The article argues that a constitutionally meaningful monitoring system need not (and likely cannot) be designed to detect each and every error committed by counsel. Instead, the monitoring system must be designed to detect and remedy objectively identifiable problems with counsel's performance. Such a system will allow detection of a fairly wide range of errors, yet at the same time will not impose too high of a cost on the government in terms of delay and lack of finality. Ultimately, meaningful monitoring will increase attorney competence and reduce the likelihood that capital inmates will have to bear the burden of attorney error.
Keywords: capital postconviction counsel, competent counsel, due process, effective assistance, monitoring
JEL Classification: K40, K41
Suggested Citation: Suggested Citation