The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel

Abstract

This article addresses the right to postconviction counsel in capital cases - a right that is absolutely crucial to protecting innocent capital inmates from wrongful execution. It is no secret that indigent capital inmates who wish to pursue their state postconviction remedies have no constitutional right to counsel, and instead must rely on statutory grants of counsel. While numerous death penalty states have seen fit to provide a mandatory statutory right to postconviction counsel, a handful of death penalty states, including Alabama, provide only a discretionary right to such counsel. But in Alabama, which at the time of this writing has the fifth largest death row population and ranks in the top eleven among death penalty states in terms of number of exonerations of capital inmates, the situation is even worse: All indigent capital inmates in Alabama who wish to pursue state postconviction remedies must prepare and file the postconviction petition on their own and survive summary dismissal before a court will even consider whether to appoint counsel to assist the inmate. In other words, the capital inmate must do the work of counsel - and do it well enough to survive dismissal - before the court will determine whether, in its discretion, counsel is necessary. As should be obvious to even a casual observer, it is extraordinarily difficult, if not impossible, for a capital inmate to accomplish this task, as it requires not only detailed knowledge of postconviction law and procedure, but also the capacity to investigate the case and discover all possible claims to include in the petition. This article explains that, by deciding to provide counsel as a matter of statutory grace, Alabama has acquired a constitutional duty, anchored in the Due Process Clause, to provide a meaningful right to capital postconviction counsel. Unfortunately, Alabama has failed to meet that duty. Forcing indigent capital inmates to run the postconviction course alone - even for a brief time - undermines the very purpose of granting postconviction counsel in the first place, which by Alabama's own admission is to protect the rights of the capital inmate. In short, Alabama's system provides nothing more than an empty promise. And for the almost 200 inmates currently on death row in Alabama, that simply is not enough.

Keywords: capital punishment, postconviction, postconviction counsel, habeas, habeas counsel, death row, exoneration, innocence, death penalty, right to counsel, wrongful execution

JEL Classification: K14, K41, K42