The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel

Abstract

The problem of incompetent counsel in capital cases is hardly a secret. Much of the attention, however, has focused on incompetent capital trial counsel. This article, by contrast, addresses the problem of incompetent capital counsel at the state and federal postconviction levels. Like the trial and direct review phases, the capital postconviction phase is critical to an accurate and reliable determination of guilt and death-eligibility. Thus, competent counsel is just as necessary during capital postconviction proceedings as it is during capital trial and direct review proceedings.

The Supreme Court, however, has made clear that there is no constitutional right to postconviction counsel, even for capital inmates. It has also ruled that since there is no constitutional right to postconviction counsel, there is no constitutional right to the effective assistance of such counsel. As a result, capital inmates receive the full impact of any errors committed by postconviction counsel. Despite these rulings, approximately eighty percent of the death states, as well as the federal government, provide a mandatory right to capital postconviction counsel as a matter of statutory grace. Thus, rather than asking whether the government must provide capital postconviction counsel, this article explores whether, and the extent to which, the government's voluntary decision to provide capital postconviction counsel triggers a constitutional obligation to provide effective assistance of counsel.

This article argues that the government's decision to provide counsel triggers a due process-based obligation to make that right meaningful. And the right to counsel - even statutorily-granted counsel - is meaningful only when it is accompanied by a guarantee of effective assistance. Because of federalism concerns relevant in the postconviction context, the effectiveness guarantee is different from the traditional guarantee associated with trial and appellate counsel. Rather than requiring a post-performance examination of counsel's conduct, the postconviction effectiveness guarantee requires compliance with demanding competency standards and the completion of a review of counsel's actual performance during the postconviction proceeding itself. This definition of effectiveness, while imperfect, nicely balances the government's interests in avoiding delay and achieving finality with the capital inmate's interests in receiving competent assistance. It will not guarantee competent performance in each and every case, but it will increase the likelihood of competent performance and decrease the likelihood that inmates will have to bear the burden of attorney error.

Keywords: death penalty, capital punishment, postconviction, right to counsel, ineffective assistance, competency, innocence, capital postconviction counsel, effective assistance, ineffective assistance, due process, meaningfulness

JEL Classification: K40, K41