Debate Over California Death Penalty Initiative Exposes Gross Inequities In Legal Representation

Coverage leading up to the vote Tuesday on California’s ballot initiative to eliminate the death penalty has highlighted one counterintuitive source of opposition to the measure: death row inmates.

According to one informal survey of inmates in the state, most of those who responded oppose Proposition 34. But it’s not because they are in favor of death sentences — it’s because being on death row is the best way to get decent legal representation, and the only way they think they have any chance of getting their conviction overturned. The Los Angeles Times explains:

If Proposition 34 passes, death row inmates will be merged into the general prison population and have their sentences commuted to life without parole. … convicted murderers, like other felons, would still be entitled to appeal their convictions in state court with government-paid lawyers.

But except in rare circumstances, they would not be given lawyers to investigate and file habeas corpus petitions, which raise evidence the trial court did not hear and which can be heard in federal court once state appeals are exhausted.

Although police officers who support the death penalty are citing the opinions of these inmates as evidence that the death penalty should be maintained, the inmates’ opposition to Prop. 34 says little about their position on the penalty itself, and much about the sad state of our system for providing constitutionally guaranteed representation to indigent defendants.

In states around the country, the system is drastically underfunded, with public defenders carrying such massive caseloads that they cannot allocate needed time to investigate any given case and are incentivized to encourage plea deals, because they are not physically capable of taking the vast majority of these cases to trial. With DNA and other scientific evidence revealing that the rates of wrongful convictions are higher than we ever imagined, this representation is particularly critical to ensuring that the innocent are not found guilty. 

It was recognition of this deficit that led President Obama to create a new Access to Justice Initiative in the Department of Justice. As Attorney General Eric Holder explained in a 2010 address to the National Symposium on Indigent Defense:

I would argue that our criminal justice system is one of the most distinctive aspects of our national character. And I also would argue that it is one of the most praiseworthy. That said, we must face facts. And the facts prove that we have a serious problem on our hands.

Nearly half a century has passed since the Supreme Court’s decision in Gideon v. Wainwright. The Court followed with other decisions recognizing the right to counsel in juvenile and misdemeanor cases. Today, despite the decades that have gone by, these cases have yet to be fully translated into reality.

…Too often, defenders carry huge caseloads that make it difficult, if not impossible, for them to fulfill their legal and ethical responsibilities to their clients. Lawyers buried under these caseloads often can’t interview their clients properly, file appropriate motions, conduct fact investigations, or spare the time needed to ask and apply for additional grant funding. And the problem is about more than just resources. In some parts of the country, the primary institutions for the delivery of defense to the poor – I’m talking about basic public defender systems – simply do not exist.

It is a reflection of this reality that death row inmates would opt to risk their life for a chance at exoneration. But it should not only be those who receive the worst possible sentence who have a fair shot at justice. Our indigent defense system is in need of drastic reform, starting with the collection of better and more complete data on the patchwork of state approaches. At least with the death penalty abolished, those innocent inmates who are fortunate enough to be exonerated will be alive to see it.