Defendants Have ‘No Constitutional Rights, No Money’ : Lawyers for Death Appeals Grow Scarce

The number of lawyers in the United States has doubled to 700,000 since 1970, but there are not enough to go around on Death Row.

Many of the 1,765 men and women awaiting execution in this country cannot find attorneys to appeal their sentences. Mary Broderick of the National Legal Aid and Defender Assn. predicts someone will be executed within the year while still hunting for a lawyer.

In many states with large populations on Death Row, lawyers willing to file appeals are a scarce commodity. That’s because a defendant’s constitutional right to an attorney paid for by taxpayers comes to an end after his conviction and death sentence are affirmed on direct appeal--the first appeal at the state level.

The legal options, however, do not end there. Following direct appeal, a defendant still may raise challenges in state post-conviction and federal habeas corpus proceedings.

“The root problem comes down to the fact there is no constitutional right and there is no money,” said University of North Carolina law Prof. Norman Lefstein, chairman of the American Bar Assn.’s criminal justice section. “There are stories of lawyers who have virtually lost their practices handling indigent defense cases.”

Volunteers Hard to Find

Until recently, private organizations such as the American Civil Liberties Union have been able to find volunteers to represent inmates facing imminent death. But Death Row populations have grown so rapidly since the Supreme Court reinstated capital punishment in 1976, there are no longer enough volunteers to go around.

“All of a sudden you have defendants who have been convicted and affirmed at the appellate level and there’s no counsel,” ABA consultant Robert Spangenberg said. “You can do what Texas does and fry them; see how quick you can fry them before you get lawyers involved.”

In response to the problem, Florida last year created the Capital Collateral Representative, whose job is to represent Death Row inmates on appeal.

The office was backed by both pro- and anti-death penalty forces in the Legislature. Penalty supporters felt that guaranteeing lawyers to Death Row inmates would streamline the process and speed up executions, while opponents said it would at least ensure that every inmate had his day in court.

Gets 10-Year Backlog

“It’s a wonderful program,” said director Larry Spalding. “It’s just 10 years too late. . . . We’ve been given a 10-year backlog.”

Broderick fears that Florida’s innovative program will be doomed by inadequate staff and funding from the start.

“I think they got sandbagged,” she said. “While nobody was looking, they cut the funding 25%. They had an excessive caseload to start with. Now it’s just impossible.”

Nevertheless, Broderick believes state-funded programs will be the best solution for the lawyer crisis and says it’s up to practicing lawyers to lobby for them.

“I don’t think volunteers are the answer,” she said. “To say people should volunteer is a cop-out because people facing death should not have to rely on volunteers.”

ABA Takes Active Role

The American Bar Assn. has been working with bar associations in various states to set up appeal panels for Death Row inmates and helped establish a national clearinghouse for lawyers who accept appeals. The ABA also has asked the Supreme Court to adopt a rule requiring counsel for Death Row inmates filing appeals in federal courts.