One of the most cutting critiques of Alabama’s death penalty system is that many defendants – and probably most – do not receive the miminal quality counsel one might expect in a case involving life or death. It has long been my view that society should aspire to provide indigent criminal defendants the sort of quality representation that our corporations expect. Or to put it a different way, I believe that indigent lawyers should be good enough that a sophisticated consumer of legal services would entrust the fate of his or her son or daughter to such attorneys. Unfortunately, Alabama’s indigent defense system falls far, far short of this goal.
In its recent Alabama death penalty assessment, the ABA team articulated three particular concerns about counsel in capital cases. First, the matter of qualifications. The only requirement of a lawyer appointed in a capital case – and the law only requires that one lawyer be appointed – is that he or she have five years of criminal defense experience. He or she need not be a full-time “criminal lawyer” – handling several criminal cases will suffice. And even this minimal requirement isn’t even always enforced. Why is this qualification too thin? Capital work is extremely high stakes and requires serious trial talent. But even more so, it requires a skill distinct from other criminal work: the ability to litigate the punishment issues of mitigation and aggravation. Mitigation in capital cases is exceptionally complex, requiring excellent interview and investigation skills, the ability to frame a compelling narrative (that looks very different from the guilt/innocence narrative), and a talent for understanding how to make guilt/innocence issues work in tandem (not conflict) with life/death issues. A general practitioner with some background in criminal cases won’t learn this stuff. Nobody would choose to have a cornonary bypass with a doctor who’d done a few heart surgeries, here and there. The same holds true with capital cases.
A second challenge is the state’s lack of training requirements. The amount of specialized training required of appointed counsel in capital cases? None. And when you have untrained defenders trying their first capital case all allone, that effectively turns capital defendants into guinea pigs.
Finally, there is the matter of compensation. Until 1999, Alabama capped fees in capital cases at $2000. Most people currently on death row were convicted under that cap. The limit has been lifted, and fees – meager as they are ($40/hour for out of court work; $60/hour for in-court) – can at least match the needs of an individual case. The same is not true on appeal, however, where fees remain capped at $2000. When you consider how long it takes simply to review a 1500 page trial record, one can only expect an appellate lawyer to do the most cursory job on these cases. And when it comes to post-conviction representation – state collateral challenges – Alabama offers even less. Alabama is one of only two states that does not guarantee counsel in these proceedings. A judge has the discretion to appoint counsel, but the fee cap is $1000.
As I am writing in a separate post, I think the answer to many of these challenges is a properly funded public defender. But at minimum, the state should follow the ABA’s recommendation that it appoint a statewide commission on indigent defense. The starting point for any fair and accurate death penalty system is provision of quality defense services. Indeed, such services are a precondition to a just capital punishment regime. Put simply, it’s a matter of good government.