In February 2010, the American Constitution Society for Law and Policy (ACS) published an issue brief on the relationship between hired defense counsel and the death penalty. The brief concluded that defendants charged with a capital crime who hired a private attorney, even if only for a portion of the criminal proceedings, had a greatly reduced chance of receiving a death sentence.
The ACS chose Harris County, Texas, which contains Houston and its environs, as the location for the study. Harris County is the largest jurisdiction in the nation that uses individual attorneys appointed by a judge for indigent defense instead of a public defender system. That same system is used in 252 of Texas’ 254 counties. Harris County is also the capitol of capital sentencing, with 112 executions resulting from convictions in the county since the death penalty was reinstated in 1976. The only jurisdiction in the U.S. with more executions than Harris County is the entire state of Texas.
An indigent defense system that uses judge-appointed counsel selected from the private bar has many shortcomings. When appointed defense attorneys are paid a flat fee on a per-case basis, they may be tempted to skip on preparation hours and try to keep the trial as short as possible. Support services, which must be approved by the judge, may be denied or insufficiently funded since judges are pressured by county commissioners to reduce indigent defense costs. The judges are also elected which adds to the pressures to short change the defense.
Further, appointed counsel may become beholden to the trial judges who assign them to cases and pay their fees, creating a patronage system for future appointments that discourages attorneys from putting up a vigorous defense for fear of alienating the appointing judge. Judges may also tend to appoint friends and political supporters rather than the best qualified attorneys. [See: PLN, Sept. 2010, p.28].
In 1991, Harris County instituted a capital certification program for lawyers who represent defendants in death penalty cases, requiring minimum levels of criminal trial experience, percentage of practice devoted to criminal law, and prior capital and first-degree felony trial experience, combined with passing a qualifying examination and participating in annual continuing education, before an attorney could be appointed to a capital case. This certification program became a statewide model.
Despite efforts to reform the system of appointment of attorneys in capital cases, the ACS study clearly shows that problems remain. When appointed capital counsel requests support services, 32% of such requests are denied. Many of the requests that are approved are insufficiently funded. According to Harris County judges, 40% report that their judicial peers consider whether a lawyer is a friend, 35% consider whether the lawyer is a political supporter, and 30% consider whether the lawyer made a political contribution to the judge’s election campaign when considering whether to appoint a particular attorney to a capital case.
These kinds of problems indicate that it would be more likely for a defendant with appointed counsel to receive the death penalty. Of the 504 adult defendants indicted for capital murder in Harris County between 1992 and 1999, prosecutors sought the death penalty in 129 cases that went to trial, securing 98 capital sentences. Prosecutors sought a life sentence in 218 other cases that went to trial and plea bargained the remaining 157.
Counsel was appointed to represent the defendant for the entire case in 369 cases (appointed); attorneys were hired by the defendant for the entire case in 31 cases (hired); and attorneys were hired for only a portion of the case in 104 cases (mixed). Prosecutors sought the death penalty in 3% of the hired cases, 26% of the mixed cases and 27% of the appointed cases. Thus, the involvement of hired counsel greatly reduced the chance that a defendant would face the death penalty.
In the cases in which the death penalty was sought, none of the defendants with hired counsel received the death penalty. In contrast, 56% of the defendants in the mixed cases and 82% in the appointed cases were sentenced to death. The total outcome of both stages of prosecution was that, for all 504 cases, 0% of the defendants with hired counsel, 14% of defendants with mixed counsel and 23% of defendants with appointed counsel received death sentences.
Similar disparities were discovered in regard to acquittal rates. Of the cases in which the death penalty was sought, 30% of defendants with hired counsel, 0% of those with mixed counsel and 2% of those with appointed counsel were acquitted at trial.
Critics of the death penalty claim that only the wealthy can afford top-notch attorneys and thus escape death sentences; i.e., capital punishment is applied to those without capital. The ACS study did not bear that out. Instead, it was noted that all of the capital case defendants in the study appeared to be uniformly poor, and hired attorneys were apparently retained by friends and family who pooled their financial resources. Thus the death penalty was only sought against poor people but only imposed on those poor people unable to drum up the money for adequate privately hired legal representation.
The ACS study argues strongly for the establishment of a system of public defenders in Harris County, stating that public defender offices with specialized capital defense sections have a much higher success rate than appointed attorneys in defending against death penalty prosecutions. The ACS issue brief is available on PLN’s website or at www.acslaw.org/node/15366.
Source: “Hire A Lawyer, Escape the Death Penalty?” Issue Brief by Scott Phillips, associate professor, Dept. of Sociology and Criminology, University of Denver, based on “Legal Disparities in the Capital of Capital Punishment,” 99 J. Crim. L. & Criminology 717 (2009)
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