Between life and death

May 12, 2008

Between life and death

Too many accused of murder lack adequate counsel

With the U.S. Supreme Court's approval of lethal injection as a means of capital punishment, many states see a green light to go ahead with executions.

Georgia wasted no time, putting William E. Lynd to death Tuesday for a 1988 murder. And Florida Gov. Charlie Crist made a point of saying that he's ready to start signing death warrants again.

But there's a bigger problem with the American death penalty, one that will probably never be the subject of a sweeping Supreme Court ruling -- even as it contributes to cases of obvious injustice across the nation. Every principle of fairness insists that no person should be on trial for his life without adequate, competent legal counsel. Yet every national study suggests that the standard of death-penalty defense falls far short of that goal.

The greatest factor identified among people sentenced to death is not their race, age or even the relative heinousness of their crime; it's whether they can afford to hire private counsel. If they can't, they must rely on an underfunded (and possibly inexperienced) public defender, and the risk of being sentenced to death is far greater. "Poor people getting lousy lawyers" represents a significant barrier to justice, said John Holdridge, head of the American Civil Liberties Union Capital Punishment Project.

The problem is particularly obvious in Florida, which leads the nation in death-row exoneration. On paper, this state does come closer than many others to guidelines set up by the American Bar Association for ensuring adequacy of capital-defense counsel. But in a 2006 assessment, the ABA identified substantial weaknesses in the way Florida administers the death penalty. State laws don't provide enough assurance that capital defendants have access to skilled attorneys, especially for those represented by court-appointed private attorneys. (Florida Supreme Court Justice Raoul Cantero once angrily noted that these attorneys' work was among the "worst lawyering" he'd ever seen.)

The money paid for the average death-penalty defense is woefully inadequate. There's no oversight to ensure that each of Florida's 20 judicial districts meets basic guidelines for adequate representation. And Floridians pay for that inadequacy -- in the cost incurred by years of appeals, in the doubt that comes every time an innocent person is freed after years on death row.

Other governors have responded to that doubt -- and to the serious concerns that prompt it -- by seeking meaningful reform or asking their legislatures to reconsider use of the death penalty. In Ohio, Gov. Ted Strickland and Attorney General Marc Dann both say they have no intention of rushing to execute prisoners in light of the recent Supreme Court ruling, and Strickland bluntly says he's "not comfortable" with the death penalty.

That caution could serve Florida well. Before Crist cranks up the machinery of execution, justice demands that the weaknesses in Florida's death-penalty process be remedied -- or even better, that the state finally turn away from a punishment that's proven ineffective and unjust.