On May 1, Jeffrey Hutchinson, a Gulf War vet­er­an, was exe­cut­ed in Florida for the mur­ders of his girl­friend and her three young chil­dren. As he fought behind ene­my lines in some of the most dan­ger­ous regions on earth, bombs rat­tled and nerve gas cor­rod­ed his brain, caus­ing per­ma­nent dam­age that would con­tribute to the tragedy just a few years lat­er. ​“His mind was a casu­al­ty, just like any limb lost in com­bat,” a group of 129 mil­i­tary vet­er­ans wrote in a let­ter urg­ing Gov. Ron DeSantis to halt the exe­cu­tion. But no fed­er­al court ever con­sid­ered whether Mr. Hutchinson’s life should be spared because of the phys­i­cal and men­tal trau­ma he suf­fered in the mil­i­tary. His fed­er­al appeals were dis­missed not because they did not have mer­it, but because his attor­neys mis­cal­cu­lat­ed a filing deadline. 

Mr. Hutchinson is one of at least 57 death-sen­tenced men who lost their chance for fed­er­al review of their claims because their attor­neys did not file their appeals in time. He is the 29^th to be exe­cut­ed; 17 remain on death row. These men suf­fered the con­se­quences of their lawyers’ fail­ures under the long­stand­ing ​“agency” doc­trine, which holds a client respon­si­ble for his lawyer’s actions because the client has autho­rized the lawyer to act as his agent. However, many argue that this doc­trine should not apply in death penal­ty cas­es. ​“If you were to ask a child whether it would be fair to exe­cute a pris­on­er because his lawyer had made a mis­take, the answer would be no,” wrote Adam Liptak, a long­time legal jour­nal­ist for The New York Times. ​“You might even get a look sug­gest­ing that you had asked a pret­ty stupid question.”

The Assumptions of Agency

Critics point out that the ​“agency” doc­trine rests on cer­tain assump­tions: that clients freely choose their lawyers; that those lawyers have the time and exper­tise to pro­vide high-qual­i­ty rep­re­sen­ta­tion; that clients are in reg­u­lar con­tact with their lawyers to mon­i­tor the sta­tus of their case; and that clients have a com­pe­tent under­stand­ing of the legal sys­tem. These assump­tions clash with the real­i­ties of a cap­i­tal case. ​“Now con­sid­er a client who is poor, une­d­u­cat­ed, men­tal­ly trou­bled, scared, or impris­oned — or per­haps all of these things at once,” Mr. Liptak wrote. ​“And then add to this mix a lawyer who is not retained but a vol­un­teer or assigned by the state. Does it still make sense to con­sid­er such a lawyer an authen­tic agent of the client?”

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), death-sen­tenced pris­on­ers have one year from the time their death sen­tences become ​“final” to file a habeas appeal in fed­er­al court. They are also enti­tled to pur­sue post-con­vic­tion appeals in state court, and their fed­er­al appeals are ​“tolled” — the clock is stopped — while their state appeals are con­sid­ered. But these cal­cu­la­tions can become com­pli­cat­ed. DPI’s review of the 57 cas­es found sev­er­al instances where judges and attor­neys dis­agreed on the tim­ing of a prisoner’s dead­line. In Richard Hamilton’s case, a Florida judge, pros­e­cu­tors, and his own attor­ney assured him that he still had time to file even though the dead­line had passed months ear­li­er.

Mr. Hutchinson had a bet­ter under­stand­ing than most pris­on­ers of the com­plex law gov­ern­ing his fed­er­al habeas fil­ing. A week before his dead­line, he told his attor­neys ​“point blank and in no uncer­tain terms to ​‘either file my…motion imme­di­ate­ly or I will dis­charge you and file it myself.’” His attor­neys promised they would do so but instead filed about three weeks lat­er under the false belief that they had more time. The Eleventh Circuit denied Mr. Hutchinson relief in 2012. (In doing so, the judges them­selves cor­rect­ed the dead­line in a foot­note, say­ing that ​“for some rea­son” both par­ties and the low­er court had agreed it was September 30^th when it should have been the 29^th.)

In a con­cur­rence, Judge Rosemary Barkett laid out a sys­tem­at­ic cri­tique of the agency doc­trine. She wrote that the the­o­ry makes two assump­tions: 1) ​“that the client vol­un­tar­i­ly choos­es his lawyer for com­pe­tence, dili­gence, and loy­al­ty,” and 2) ​“that the client has the abil­i­ty to direct the actions of the lawyer or, at the very least, that con­stant and ade­quate oppor­tu­ni­ties exist for com­mu­ni­ca­tion between the client and his lawyer.” 

However, most death-sen­tenced pris­on­ers ​“must depend on appoint­ed or pro bono vol­un­teer coun­sel who too often lack exper­tise in post-con­vic­tion death penal­ty rep­re­sen­ta­tion,” she wrote. ​“Prisons are often locat­ed in far-flung places that are dif­fi­cult for lawyers to reach and often the lawyers are not even locat­ed with­in the same state as their death row clients,” who ​“have restrict­ed access to phones, the inter­net, and law libraries.” She fur­ther not­ed that ​“the psy­cho­log­i­cal effects of spend­ing extend­ed peri­ods in soli­tary confinement…may impair an inmate’s men­tal capa­bil­i­ties to the extent that his active par­tic­i­pa­tion in lit­i­ga­tion becomes impos­si­ble.” And “[f]inally, even if death row inmates were giv­en the abil­i­ty to access their attor­neys with­out these for­mi­da­ble obsta­cles, most death row inmates lack the skills and intel­lect to super­vise, direct or police the activ­i­ties of their lawyers in the way that the agency paradigm assumes.”

Federal appeals rest on the legal doc­trine of habeas cor­pus, which forces the gov­ern­ment to jus­ti­fy its incar­cer­a­tion of a per­son. Known as the ​“Great Writ,” dat­ing back at least eight cen­turies and com­mon­ly viewed as ​“the most cel­e­brat­ed writ in the English law,” habeas cor­pus is the only type of court order explic­it­ly rec­og­nized in the Constitution as a right of the American peo­ple. The Supreme Court has held that ​“there is no high­er duty than to main­tain it unim­paired.” But the agency doc­trine, cou­pled with AEDPA’s strict and unspar­ing require­ments, too often result in death-sen­tenced pris­on­ers los­ing their habeas rights even when all par­ties admit that the true fault lay with the lawyer. 

Some warned before AEDPA was passed in 1996 that its harsh pro­vi­sions would under­mine the essen­tial tra­di­tion of fed­er­al habeas review. An inter­nal Clinton admin­is­tra­tion memo stat­ed that the law ​“must pro­vide for com­pe­tent tri­al coun­sel” and not­ed the ​“high rate of error in cap­i­tal tri­als” which habeas review helped address. But no such guar­an­tee of com­pe­ten­cy was includ­ed in the final bill. Days before the law passed, New York Senator Daniel Patrick Moynihan argued that it would ​“intro­duce a virus that will sure­ly spread through­out our sys­tem of laws.” 

Equitable Tolling: An Inadequate and Infrequent Solution

In rare cas­es, pris­on­ers may receive ​“equi­table tolling,” where a court extends the AEDPA dead­line in the inter­ests of jus­tice. Yet, as Mr. Liptak wrote, the Supreme Court has ​“con­struct­ed a vari­ety of unsat­is­fac­to­ry doc­trines built on the fic­tion of agency,” which lim­it equi­table tolling to cas­es where the attor­ney aban­doned the pris­on­er entire­ly and the pris­on­er demon­strat­ed extra­or­di­nary dili­gence in try­ing to pur­sue his appeals. In 2010 the Court ruled in favor of Albert Holland, who wrote his attor­ney a stream of let­ters about the fed­er­al fil­ing dead­line, con­tact­ed mul­ti­ple courts, and filed com­plaints with the Florida Bar Association when his attor­ney did not update him on the sta­tus of his case. The Supreme Court not­ed that Mr. Holland, who spent hours in the prison law library, appeared to be a sharp legal mind who was ​“right about the law” where his attor­ney was ​“wrong.” 

Mr. Holland even tried to file his own fed­er­al habeas peti­tion. But the state argued, and the Florida Supreme Court agreed, that he ​“could not file any pro se papers with the court while he was rep­re­sent­ed by coun­sel, includ­ing papers seek­ing new coun­sel.” Supreme Court Justice Samuel Alito rec­og­nized this sit­u­a­tion as ​“per­verse,” yet as Judge Barkett point­ed out in Mr. Hutchinson’s case, it is all too com­mon. ​“Even if a client want­ed to cor­rect his lawyer’s mis­takes, he would not be enti­tled to do so,” she wrote, because courts ​“rou­tine­ly decline to con­sid­er pro se plead­ings when an inmate is rep­re­sent­ed by counsel.” 

Mr. Holland’s attor­ney failed to inform him when the Florida Supreme Court decid­ed his state post-con­vic­tion appeal, which restart­ed the clock on his one-year fed­er­al dead­line. Mr. Holland learned of the deci­sion a few weeks lat­er in the law library and filed his habeas peti­tion the next day, but it was too late. Multiple low­er courts ruled that Mr. Holland was not dili­gent enough and denied him equi­table tolling before the Supreme Court ruled in his favor. 

Justice Stephen Breyer, writ­ing for the major­i­ty, acknowl­edged that equi­table relief in habeas cas­es can cor­rect injus­tices that ​“arise from a hard and fast adher­ence to more absolute legal rules, which, if strict­ly applied, threat­en the evils of archa­ic rigid­i­ty.“ But he also wrote that a ​“gar­den vari­ety claim of excus­able neglect” by an attor­ney was not enough to give the client anoth­er chance at fed­er­al appeals, and he described Mr. Holland’s case as a rare excep­tion to the rule.

Mr. Liptak warned that ​“requir­ing clients to super­vise their lawyers as vig­or­ous­ly as Mr. Holland did mis­ap­pre­hends what most of the rel­e­vant clients are capa­ble of…it seems that only clients with legal acu­men may be enti­tled to solic­i­tude from the courts when their lawyers err.” Mr. Hutchinson was one of those judged not rea­son­ably dili­gent. ​“He did every­thing any rea­son­able client would do to assure that his lawyers pro­tect­ed his inter­ests, includ­ing implor­ing his lawyers to file his post-con­vic­tion plead­ings in a time­ly man­ner,” Judge Barkett wrote.

The Holland Court’s exam­ples of ​“gar­den vari­ety” neg­li­gence includ­ed ​“a sim­ple mis­cal­cu­la­tion that leads a lawyer to miss a fil­ing dead­line” — the exact sit­u­a­tion that led the Eleventh Circuit to rule against Mr. Hutchinson. ​“The fact that [Mr. Hutchinson’s lawyers] ought to have known bet­ter does not jus­ti­fy equi­table tolling,” the major­i­ty wrote. The judges then made a stunning admission: 

“If attor­ney mis­cal­cu­la­tion, error, or neg­li­gence were enough for equi­table tolling, the [fed­er­al habeas] statute of lim­i­ta­tions would be tolled to the brink of extinc­tion because in prac­ti­cal­ly every case where there is a fail­ure to meet the fil­ing dead­line an attor­ney is at fault.“

It must also be not­ed that time­li­ness is an affir­ma­tive defense; a late appeal will be accept­ed unless the state decides to argue for dis­missal based on the dead­line. State attor­neys have suc­cess­ful­ly argued that death-sen­tenced pris­on­ers for­feit­ed all fed­er­al appeals because their attor­neys filed one day late. For exam­ple, attor­neys for Kenneth Rouse filed his peti­tion one day late even though an expe­ri­enced habeas lawyer had giv­en them the cor­rect dead­line. Mr. Rouse lost his chance for a fed­er­al court to review evi­dence that a juror had failed to dis­close his mother’s rape and mur­der, called Black men like Mr. Rouse a racial slur, and claimed that Black men rape white women for ​“brag­ging rights.” Alabama suc­cess­ful­ly blocked Eugene Clemons’ fed­er­al appeals because, even though his attor­neys filed a month in advance, the peti­tion fell behind a fil­ing cab­i­net in the clerk’s office. Johnny Ray Johnson and Keith Thurmond were both exe­cut­ed in Texas after the same appoint­ed attor­ney, Jerome Godinich, tried to file their peti­tions after hours on the due date and found that the clerk’s time stamp was bro­ken.

Gregory Scott Johnson’s habeas dead­line was Monday, June 28. His lawyer mailed his peti­tion on Friday, June 25. But the court did not receive the peti­tion until Tuesday the 29^th, and the state moved to strike Mr. Johnson’s fed­er­al appeals for being untime­ly. The Seventh Circuit Court of Appeals acknowl­edged that Mr. Johnson’s lawyer ​“bun­gled the job” and should have known that appeals are only con­sid­ered filed once received by the court. But the Seventh Circuit ruled against Mr. Johnson:

“No one inter­fered with Johnson’s abil­i­ty to pur­sue col­lat­er­al relief in a time­ly fash­ion. He wants us to treat his own lawyer as the source of inter­fer­ence, but lawyers are agents. Their acts (good and bad) are attrib­uted to the clients they rep­re­sent. […] So it is as if Johnson him­self had made the deci­sions that led to the delay.”

The state of Indiana exe­cut­ed Mr. Johnson nine months later.

Systemic Failure to Provide Competent Counsel in Alabama and Florida

DPI found that over half (31/​57) of pris­on­ers denied fed­er­al review due to missed dead­lines came from just two states — Alabama and Florida — despite those states account­ing for only 18% of death sen­tences and 12% of exe­cu­tions in the mod­ern era. It is not a coin­ci­dence that these same states have his­tor­i­cal­ly failed to appoint com­pe­tent coun­sel for death-sen­tenced pris­on­ers in state post-conviction appeals. 

For many years Alabama was the only state in the coun­try that refused to appoint attor­neys for cap­i­tal state post-con­vic­tion appeals. The state relied on pro bono rep­re­sen­ta­tion alone, often from large out-of-state law firms. Even if the vol­un­teer lawyers were ​“über-qual­i­fied” on paper, as the state once boast­ed in a brief, they were not always com­pe­tent to defend a death-sen­tenced pris­on­er. Corey Maples’ pro bono attor­neys at the white-shoe law firm Sullivan & Cromwell failed to noti­fy their client or the court when they left the firm. As a result, the firm’s mail­room returned the deci­sion in Mr. Maples’ case unopened; Mr. Maples learned that no appeal had been time­ly filed when the state moved to set his exe­cu­tion date. Alabama offi­cials repeat­ed­ly argued that Mr. Maples was not enti­tled to equi­table tolling. But the Supreme Court held in 2012 that the unique cir­cum­stances in Mr. Maples’ case amount­ed to an ​“aban­don­ment” by coun­sel, sev­er­ing the ​“agency” rela­tion­ship. The rul­ing allowed him to suc­cess­ful­ly pur­sue his fed­er­al appeals and he was recent­ly resen­tenced to life in prison. Mr. Maples’ for­mer lawyers faced no pro­fes­sion­al con­se­quences.

Lawyers have missed dead­lines and for­feit­ed fed­er­al review for Alabama clients with inno­cence claims, includ­ing William Kuenzel, Robin ​“Rocky” Myers, and Christopher Barbour. Mr. Kuenzel had an ali­bi and the only phys­i­cal evi­dence in the case point­ed to the prosecution’s star wit­ness, but his lawyers missed a fil­ing dead­line by five months, and Mr. Kuenzel died in 2022 while await­ing exe­cu­tion. Mr. Myers received the state’s first clemen­cy grant in 25 years this past February; Gov. Kay Ivey said, ​“I have enough ques­tions about Mr. Myers’ guilt that I can­not move for­ward with exe­cut­ing him.” His appoint­ed lawyer had nev­er before worked on a cap­i­tal case and admit­ted that he did ​“not remem­ber[]” that there was a one-year dead­line for fed­er­al habeas peti­tions. And after DNA test­ing from a rape and mur­der scene exclud­ed Mr. Barbour, a fed­er­al court allowed his ​“actu­al inno­cence” claim to pro­ceed last year, a first in the state’s his­to­ry. Mr. Barbour pre­vi­ous­ly came with­in 48 hours of exe­cu­tion after his ear­li­er fed­er­al attor­neys missed his filing deadline. 

Florida’s record of poor appel­late rep­re­sen­ta­tion can be traced in part to pol­i­cy changes a quar­ter-cen­tu­ry ago that were intend­ed to save the state mon­ey. Florida offi­cials cre­at­ed a ​“reg­istry” of attor­neys eli­gi­ble for appoint­ment in cap­i­tal cas­es and sub­se­quent­ly closed a major region­al office of ded­i­cat­ed habeas attor­neys. But reports quick­ly emerged of sub­par rep­re­sen­ta­tion. Florida Supreme Court Justice Raoul Cantero tes­ti­fiedbefore the state leg­is­la­ture in 2005 that the reg­istry attor­neys per­formed ​“some of the worst lawyer­ing I have ever seen” and wrote some of the ​“worst briefs I have read.” Florida alone accounts for 39% of the missed-dead­lines cas­es but only 13% of death sen­tences in the mod­ern era. Most of the missed dead­lines occurred in the 2000s, the decade fol­low­ing the cre­ation of the registry. 

Attorney Jefferson Morrow filed Floyd Damren’s habeas peti­tion 208 days late after being appoint­ed through the reg­istry. The Marshall Project report­ed that when ​“pressed for an expla­na­tion in court, he said he was inex­pe­ri­enced in habeas law, sent a peti­tion to the wrong court and was nev­er able to deter­mine the dead­line in the first place.” Despite Mr. Morrow’s ​“gross­ly neg­li­gent” work, he became a Florida tri­al judge, while Mr. Damren remains on death row. Another reg­istry lawyer who missed two habeas fil­ing dead­lines admit­ted, ​“It was a ter­ri­ble mis­take for me to get involved.” 

Another effect of inad­e­quate and flawed appoint­ment process­es is that some pris­on­ers are not appoint­ed coun­sel until the dead­line has almost elapsed — or even passed entire­ly. But courts have shown lit­tle sym­pa­thy. Gary Lawrence ​“contend[ed] that delays in Florida’s pro­gram for appoint­ing post­con­vic­tion coun­sel and oth­er issues out­side of his con­trol caused 298 days to pass before Florida appoint­ed an attor­ney who took an active role in his post­con­vic­tion case,” Supreme Court Justice Clarence Thomas wrote for the major­i­ty in deny­ing Mr. Lawrence relief in 2007. ​“These facts have lit­tle rel­e­vance to our analy­sis.”

James Ford filed a motion for a new lawyer before his dead­line, but the court didn’t appoint him a new lawyer until after the dead­line passed. The court then refused to accept his habeas peti­tion even though his new lawyer filed it with­in 12 days of appoint­ment. Mr. Ford was exe­cut­ed on February 13, the first per­son to die by state order in Florida this year, with no fed­er­al court hav­ing reviewed his claim that he could not be exe­cut­ed due to intel­lec­tu­al dis­abil­i­ty. Experts found that Mr. Ford, age 65, had a men­tal age of about 13 years old before his exe­cu­tion and had pre­vi­ous­ly scored with­in the bot­tom 2% of the pop­u­la­tion on an IQ test. 

Some schol­ars have pro­posed that all ​“gar­den vari­ety” attor­ney mis­takes, like mis­cal­cu­lat­ing dead­lines, for­get­ting to sub­mit peti­tions, or fil­ing peti­tions in the wrong court, should enti­tle pris­on­ers to equi­table tolling when the con­se­quence could be an exe­cu­tion that vio­lates the Constitution. Judge Barkett argued that the agency prin­ci­ple is bad pol­i­cy in cap­i­tal cas­es because pun­ish­ing pris­on­ers does not improve the actions of their lawyers, espe­cial­ly when the lawyers face no con­sis­tent pro­fes­sion­al sanc­tions for miss­ing dead­lines and are not sub­ject to mal­prac­tice law­suits like they are in civil cases. 

The ​“real­i­ty is that death row inmates’ access to com­pe­tent, post-con­vic­tion legal rep­re­sen­ta­tion is at best incon­sis­tent and at worst nonex­is­tent,” Judge Barkett wrote, ​“and their abil­i­ty to com­mu­ni­cate freely and active­ly par­tic­i­pate in their lit­i­ga­tion is seri­ous­ly com­pro­mised. […] Under this real­i­ty, I ques­tion whether strict adher­ence to the prin­ci­ple that a death row inmate must bear the con­se­quences of his lawyer’s neg­li­gence is fair or just.”

Mr. Hutchinson’s attor­neys chal­lenged the agency rela­tion­ship in their final Supreme Court peti­tion, ask­ing that the Court ​“grant review to ensure that oth­er cap­i­tal peti­tion­ers like Mr. Hutchinson, par­tic­u­lar­ly those with sig­nif­i­cant cog­ni­tive impair­ments, are not denied all fed­er­al habeas review due to no fault of their own.” The Court ​“should not allow a sit­u­a­tion where a wound­ed com­bat vet­er­an is still being blamed for fail­ing to nav­i­gate the minu­ti­ae of high­ly tech­ni­cal issues of tolling and fed­er­al­ism from death row that have vexed the bench and bar for decades.” The Court denied Mr. Hutchinson’s peti­tions with­out com­ment. He died by lethal injec­tion at 8:15 p.m. on May 1.

New Tennessee Policy to Isolate Prisoners Before Execution Described as “Its Own Form of Torture”

In a change from pre­vi­ous pol­i­cy and prac­tice, Oscar Smith spent the last two weeks of his life in strict iso­la­tion, sep­a­rat­ed from oth­ers on...