Two pieces addressing racial and economic inequality, legal representation
and the death penalty:
*Printed in Counterpunch: Opening remarks in the Senate's subcommittee on
the Constitution Hearing on "The Adequacy of Representation in Capital
*New Hampshire Public Radio: Two Very Different Death Penalty Defendants"
(To listen to the piece, go to http://www.nhpr.
Apri1 8, 2008
"People Who are Well Represented at Trial do not Get the Death Penalty."
Legal Representation and the Death Penalty
By Sen. RUSS FEINGOLD
Opening remarks in the Senate's Subcommittee on the Constitution Hearing on
"The Adequacy of Representation in Capital Cases"
As a result of the litigation before the Supreme Court challenging the
constitutionality of lethal injection as a method of execution, there is
currently a de facto moratorium on executions in this country. This presents
us with an opportunity while executions are paused to take stock of one of
the most serious problems still facing many state capital punishment
systems: the quality of representation for capital defendants. That is the
purpose of this hearing.
Specifically, today we will examine the adequacy of representation for
individuals who have been charged with and convicted of capital crimes at
the state level. We will discuss the unique challenges of capital
litigation, and the unique resources and training capital defenders need to
be fully effective.
The Supreme Court held in 1932, in Powell v. Alabama, that defendants have
the right to counsel in capital cases. The Court explained that an execution
resulting from a process pitting "the whole power of the state" against a
prisoner charged with a capital offense who has no lawyer, and who may in
the worst circumstances even be illiterate, "would be little short of
Those are strong but appropriate words. Over the following decades the
Supreme Court continued to recognize the importance of the right to counsel,
ultimately concluding in 1984 in Strickland v. Washington that the Sixth
Amendment guarantees not just the appointment of counsel, but the effective
assistance of counsel.
Yet as the witnesses today know from the variety of perspectives they bring
to this issue, these constitutional standards are just the beginning. The
work done by a criminal defense attorney at every stage of a capital case,
and the experts and resources available to that attorney, can literally mean
the difference between life and death.
This is not a hypothetical. The right to effective assistance of counsel is
not just a procedural right; it's not just lofty words in a Supreme Court
decision. Failing to live up to that fundamental obligation can lead to
innocent people being put on death row.
Just last week an inmate in North Carolina, Glen Edward Chapman, was
released after nearly 14 years on death row, bringing the number of death
row exonerees to 128 people. A judge threw out Mr. Chapman's conviction for
several reasons, including the complete failure of his attorneys to do any
investigation into one of the murders he was convicted of committing--
death that new evidence suggests may not have been a murder at all, but
rather the result of a drug overdose. Local prosecutors decided not to retry
Mr. Chapman, and dismissed the charges. According to North Carolina
newspapers, Mr. Chapman's incompetent defense was mounted by two lawyers
with a history of alcohol abuse. News reports indicate that one admitted to
drinking more than a pint of 80-proof rum every evening during other death
penalty trials, and the other was disciplined by the state bar for his
Yet despite all this, Mr. Chapman on the day of his release is quoted as
saying, "I have no bitterness." This after nearly 14 mistaken years on death
Mr. Chapman's story is astounding, but it is not unique. The quality of
representation in capital cases in this country is uneven, at best. And the
story also illustrates a critical point: The right to counsel is not
abstract. It absolutely affects outcomes. Supreme Court Justice Ruth Bader
Ginsburg has stated it about as plainly as possible: "People who are well
represented at trial do not get the death penalty."
Obviously, inadequate representation is not unique to capital cases. But the
challenges presented in a death penalty case are unique, and the
consequences of inadequate representation catastrophic. Capital cases tend
to be the most complicated homicide trials, and the penalty phase of a
capital case is like nothing else in the criminal justice system. To do
these cases right, at the trial, penalty, appellate, and state
post-conviction stages, requires vast resources and proper training--not
only for the defense attorneys who need to put in hundreds of hours of work,
but also investigators, forensic professionals, mitigation specialists and
Yet those resources are not available in all too many cases. We will hear
more about that from our witnesses today. These realities have led people of
all political stripes--both supporters and opponents of the death
penalty--to raise grave concerns about the state of capital punishment
today. Judge William Sessions, the former FBI Director appointed by
President Reagan, was unable to join us in person today, but he submitted
written testimony, which without objection I will place in the record. In it
he notes that while he supports capital punishment, "[w]hen a criminal
defendant is forced to pay with his life for his lawyer's errors, the
effectiveness of the criminal justice system as a whole is undermined."
Unlike Judge Sessions, I oppose the death penalty. But as long as we have a
death penalty, we owe it to those who are charged with capital crimes, we
owe it to our criminal justice system, and we owe it to the principles of
equal justice on which this nation was founded, to make sure they have good
lawyers who have the resources they need to mount an effective defense.
This is not just the right thing to do. It is not just a high aspiration we
should try to achieve at some point in the distant future. It is a moral
imperative. And it is one that this country has failed to live up to, for
far too long.
Russell Feingold is a US senator from Wisconsin.