Monday, December 1, 2014

Death Penalty Representation: Between a Rock and a Hard Place

Today's ScotusBlog reports on a series of orders denying certiorary to the Supreme Court. The very last one on the list is Redd v. Chappell. The case raises a question that may, at first blush, seem technical: should capital punishment appellants be represented on appeal? Can the appellate courts deny hearing appeals from pro se (unrepresented) appellants?

A little bit of background: As Gerald Uelmen explains in this excellent and informative piece, while California presumably offers representation for capital punishment post-conviction proceedings (See Cal. Govt. Code Ann. §68662), the realities of this arrangement are pretty messy. In 1976, the California legislature created the State Public Defender‘s Office to handle all indigent criminal appeals. In the early 1990s, the governor asked the office to restrict itself to capital cases. Subsequent changes in budget and personnel contributed to the growing backlog of death penalty appointments, as did the special requirements to be counsel in cases of capital punishment: the unique expertise and level of experience required are hard to meet, which means the pool of qualified attorneys is limited. In 2009, when Uelmen wrote his piece, there was a delay of three to five years before a death row inmate had counsel appointed to handle his or her direct appeal. The wait for habeas counsel appointment was eight to ten years after imposition of sentence, and while continuity would be a good thing, it is very rare that attorneys accept representation for both the appellate and habeas process. The latter problem was only partially solved in 1998 with the creation of the Habeas Corpus Resource Center (HCRC), which represents approximately 70 clients in state habeas proceedings. And we haven't even started talking about federal habeas.

Which brings us back to Redd v. Chappell. Redd was sentenced to death 17 years ago, and his conviction was affirmed on direct appeal more than four years ago. Now, he wanted to pursue habeas remedies, but up until now has not been appointed counsel. But ironically, the California Supreme Court refuses to consider capital inmates’ pro se submissions relating to matters for which they have a continuing right to representation--even if they don't actually have representation! Presumably, despite having a right to counsel--which is NOT being honored by the state--in order to be taken seriously, and given the grim realities of the state's failure to meet its obligation, Redd has to waive his right!

The result from the Supreme Court was very unsatisfying, but Justice Sotomayor at least added some explanation as to why she joined the denial of cert: she writes that--

it is not clear that petitioner has been denied all access to the courts. In fact, a number of alternative avenues may remain open to him. He may, for example, seek appointment of counsel for his federal habeas proceedings. See 18 U. S. C. §3599(a)(2). And he may argue that he should not be required to exhaust any claims that he might otherwise bring in state habeas proceedings, as “circumstances exist that render [the state corrective] process ineffective to protect” his rights. 28 U. S. C. §2254(b)(1)(B)(ii). Moreover, petitioner might seek to bring a 42 U. S. C. §1983 suit contending that the State’s failure to provide him with the counsel to which he is entitled violates the Due Process Clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. 

My question is, of course, how is Redd supposed to know about all these options if he doesn't have counsel to inform him that they exist?

As a coda to this: Some of you may remember that, two weeks before the vote on Prop 34, the Chronicle ran a story about how death penalty inmates themselves opposed the proposition, because it would deny them the free counsel they get. And several opponents of the proposition got behind that; arguably, that was the political capital that helped defeat the proposition. But the truth is that death penalty inmates don't really get specialized counsel, and many of their petitions lag behind and go unheard for years for that very reason. If the death penalty were to be abolished tomorrow, and all these folks were to do life without parole with the general population, they could be represented by basically any attorney, which would increase the availability and quality of representation, and we would all save money and time.

Many thanks to Simon Grivet for drawing my attention to this case.

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