Alabama is the only state that does not pro­vide attor­neys for indi­gent death row inmates through­out their state appeal. Lawyers rep­re­sent­ing some of those on death row in the state will soon ask the U.S. Supreme Court to hear a case chal­leng­ing this prac­tice. The attor­neys will ask the Court to deter­mine whether peo­ple fac­ing exe­cu­tion have a con­sti­tu­tion­al right to an attor­ney as part of their right of mean­ing­ful access to the courts. Alabama main­tains that it should be able to go it alone in this area even at the risk of exe­cut­ing the unjust­ly sen­tenced or the inno­cent.

In 1963, the U.S. Supreme Court held in Gideon v. Wainwright that crim­i­nal defen­dants are enti­tled to lawyers for their tri­als, and this right was extend­ed to their first round of appeals. But in 1989 in Murray v. Giarratano, the Court indi­cat­ed that state habeas peti­tions may be a dif­fer­ent mat­ter. The deci­sion is wide­ly under­stood to require only that inmates have access to ade­quate prison law libraries. Justice Anthony Kennedy con­curred in the opin­ion, but with the stip­u­la­tion that the state being reviewed, Virginia, was pro­vid­ing ade­quate rep­re­sen­ta­tion to those on death row. He not­ed in his opin­ion, ​“The com­plex­i­ty of our jurispru­dence in this area makes it unlike­ly that cap­i­tal defen­dants will be able to file suc­cess­ful peti­tions for col­lat­er­al relief with­out the assis­tance of per­sons learned in the law.” 

Now, 20 years lat­er, death penal­ty laws have become more com­pli­cat­ed and dead­lines for fil­ing appeals have tight­ened. In response, every state but Alabama has estab­lished poli­cies that pro­vide any­one at risk of exe­cu­tion with an attor­ney. In Alabama, where 200 peo­ple are on death row and few have legal train­ing or mon­ey to hire attor­neys, a judge has the option, but is not required, to appoint an attor­ney who can assist those fac­ing exe­cu­tion. The cap on com­pen­sa­tion for this court-appoint­ed attor­ney is $1,000, which must cov­er expens­es asso­ci­at­ed with hun­dreds of hours of work that goes into a habeas peti­tion. This means that many Alabama defense attor­neys must agree to receive less than the min­i­mum wage for the hours they spend review­ing the tri­al tran­script and appel­late record, con­duct­ing wit­ness inter­views, and com­plet­ing oth­er inves­ti­ga­tion and exten­sive legal research. If those on death row are forced to rep­re­sent them­selves, they have only one year to mas­ter the state’s rules of crim­i­nal pro­ce­dure, con­duct inves­ti­ga­tions from prison, and pre­pare and file their own peti­tions for post-con­vic­tion relief. The Alabama attor­ney gen­er­al’s office acts as if actu­al lawyers were doing the fil­ing, seek­ing and often get­ting dis­missals of the pris­on­ers’ peti­tions for all pro­ce­dur­al short­com­ings.

​“Perhaps, in a per­fect world, every inmate would have a lawyer at the ready at all times. But we live in the real world,” Alabama’s state’s attor­ney gen­er­al told a fed­er­al appeals court in a brief last year. So far, courts have allowed this stan­dard to pre­vail.
(New York Times, March 26, 2007). See Representation and U.S. Supreme Court.

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