Pennsylvania Death-Row Prisoners Disproportionately Represented at Trial by Attorneys with Disciplinary Problems

15.1% of capital defendants sentenced to death in Pennsylvania since 1980 were represented at trial by a lawyer who has been disciplined for professional misconduct, and that has risen to 18.2% in the past decade, according to an investigative report by The Reading Eagle. These rates of discipline were between 5 and 6 times higher than the 3% disciplinary rate for Pennsylvania lawyers as a whole over the past 30 years. The disciplinary issues have disproportionately affected minority defendants: 83% of the death-row prisoners who had been represented by lawyers with disciplinary violations were black or Latino. The Eagle’s review of more than 300 capital cases also revealed that two thirds of the disciplined lawyers had been found to have provided ineffective representation in at least one case in which their clients had been sentenced to death. Ineffectiveness accounts for nearly 60% of capital case reversals in Pennsylvania and is the most common reason a conviction or death sentence is overturned. In 2004, Pennsylvania created Rule 801, which established minimum experience requirements for attorneys in capital cases. However, the rule contains no quality controls, does not mandate any performance evaluations, and does not set any baseline for attorney compensation. Marc Bookman, director of the Atlantic Center for Capital Representation, said low pay for appointed capital attorneys is part of the problem. “Only the worst lawyers would consider taking these cases on a regular basis because you can’t make a living doing it,” he said. Pennsylvania is not alone in its high rates of misconduct for lawyers appointed to capital trials. In Texas, one in four death row inmates had been represented by attorneys who were disciplined for misconduct, and in Washington, the same was true of one in five.

In 58% of the Pennsylvania cases involving lawyers with disciplinary violations, the lawyer had already been disciplined for misconduct before receiving his appointment. In 1/4 of the cases in which death-sentenced defendants were represented by a disciplined lawyer, that lawyer had a criminal record at the time he was assigned to the case. Almost two thirds of the disciplined attorneys received the highest levels of disciplinary action: suspension or disbarment. 45% had been disciplined multiple times.

(N. Brambila, “Disorder in the court: Troubled attorneys often take on capital cases,” The Reading Eagle, October 25, 2015.) See Representation and Race.