Dozens of inmates on death row lack lawyers for their post-conviction appeals, in part because private law firms increasingly are unwilling to take on burdensome, expensive and emotionally wrenching capital cases, death-penalty lawyers say.
The shortage of counsel to help death row inmates file state appeals and federal habeas corpus petitions challenging their convictions and sentences places them at risk of missing crucial filing deadlines, possibly preventing them from raising appeal issues. The situation has potentially dire consequences, experts say, since two out of three appealed death sentences are set aside because of errors by defense lawyers at trial or prosecutorial misconduct, according to the most comprehensive death-penalty study to date by lawyers and criminologists at Columbia University. Untimely petitions generally are not reviewed by courts without a compelling claim of innocence.
In a speech before Minnesota Women Lawyers on Monday, Justice Sandra Day O'Connor of the Supreme Court said the problem was one troubling feature of a capital punishment system that she said "may well be allowing some innocent defendants to be executed."
"We have a crisis," said Elisabeth Semel, director of the American Bar Association's Death Penalty Representation Project, which seeks to find law firms to represent death-row defendants. "Firms can save lives and make a difference, and they're not doing enough."
There are, of course, other reasons for the shortage of counsel, including swelling death-row populations, the growing complexity of the law governing habeas corpus petitions and the termination in 1995 of government funding for public-defender organizations.
Nonetheless, Semel and Lawrence J. Fox, chairman of the bar association's project, said that many lawyers have told them that increased profit pressures and large associate pay raises are deterring them from taking on the cases.
"They say they're paying associates $125,000 a year and can't afford to have someone spending 1,000 hours on a death-penalty case," Fox said.