- The Washington Times - Tuesday, March 20, 2001

For a select category of barbaric crimes, the death penalty is justified as retribution against the perpetrator, like Adolph Eichmann.

But it is disgraceful for the government in this category of cases to deny an indigent accused at least mediocre defense counsel to bolster what may be the chief safeguard against executing the innocent, which also leaves the guilty free to commit new barbarities. (Some recent death-row exonerations have led to evidence snaring the actual perpetrator). Indeed, nothing even semi-convincing can be said against a statutory right to average defense counsel when life hangs in the balance, as championed by Sen. Pat Leahy, Vermont Democrat, and an array of his apostles in the Innocence Protection Act of 2001 (S. 486).

Some allege that erroneous death penalty verdicts and deficient defense counsel are no problem. But consider these alarming facts.

Over the past quarter-century, approximately 100 death penalty prosecutions culminated in the conviction of a person later found innocent of the crime charged, reaching a peak of eight exculpations annually in each of the past two years.

These shocking miscarriages against the poor were regularly occasioned by sublunar defense counsel or worse for example, a neglect to introduce exculpatory confessions by other suspects or hibernating during pretrial months or years. Accordingly, the Illinois Supreme Court on Jan. 22, 2001, announced new rules to ameliorate the state's error-prone capital punishment system by establishing training and experience floors for both prosecutors and defense counsel. Illinois' Republican Gov. George Ryan had declared a moratorium on executions a year earlier in the wake of 13 exonerations of death-row inmates.

On Aug. 3, 1995, the Conference of State Chief Justices adopted a resolution urging each of the 38 death penalty states "to establish standards and a process that will assure the timely appointment of competent counsel, with adequate resources, to represent defendants in capital cases at each stage of such proceedings." The Conference acknowledged that the reasons for chronic inadequacy of defense attorneys were twofold: "lack of standards and criteria for choosing defense counsel and lack of funding."

The United States Supreme Court has recognized the indispensability of skilled legal defense to reliable jury verdicts in the notorious Scottsboro, Ala., rape prosecution case of Powell vs. Alabama (1932). It has thus declared that a denial of counsel in criminal prosecutions automatically mandates a new trial and is never harmless error.

Some defend the prevailing defense lawyer decrepitude in death-penalty prosecutions by noting that the innocent have ultimately been exonerated through extensive post-verdict reviews before appellate or habeas corpus courts, governors, and clemency boards.

But that defense seems patently indefensible. It ignores the long years of wrongful imprisonment and emotional trauma before exoneration arrives. Moreover, as the Supreme Court lectured in Ward vs. Village of Monroeville (1972), a defendant is entitled to a constitutional trial in the first instance irrespective of whether taints are redressed through post-verdict devices. In addition, the defense of the status quo is no argument against strengthening the key barrier to sentencing the innocent to death adequate defense lawyering in light of both the irreversibility of executions and the fallibility of judges.

Providing reasonably schooled and experienced defense lawyers and their corresponding expense are not problems. In 1999, for instance, only 272 defendants nationwide were sentenced to death, a trivial percentage of the nation's criminal justice docket. Furthermore, what the Leahy legislation seeks is not a Clarence Darrow for every death penalty prosecution of an indigent, but only midrange defense counsel in plentiful supply. Finally, there seems but one apt characterization of a nation as blessed with riches as ours turning fastidiously parsimonious when it comes to forestalling executions of innocent paupers: morally repugnant.

Critics of the Leahy bill also maintain it violates states' rights by meddling in their death penalty systems, echoing earlier protestations during the civil rights movement of federal prosecutions of race-motivated crimes when states defaulted on their constitutional obligation of colorblind justice under the 14th Amendment.

Under the Supreme Court's declaration in Herrara vs. Collins (1993), however, a state execution of an innocent inmate would violate the due process clause of the 14th Amendment. And undisputed death penalty facts demonstrate that a congressional insistence on upgrading defense counsel by states would be a reasonable measure to prevent such chilling constitutional wrongdoing.

In any event, the Leahy proposal eschews congressional coercion of states in favor of gentlemanly courtship and the charm of federal funds. It would empower a nine-member National Commission on Representation to promulgate recruitment, performance and compensation standards to ensure reasonably talented defense counsel in capital cases against the indigent. Federal dollars would be available to underwrite state initiatives to satisfy the federal standard; states not so inclined generally would be left undisturbed.

Some members of Congress, nevertheless, fear that endorsing the Leahy bill would expose them to a "soft-on-crime" indictment. But the accusation can be persuasively turned on the accuser. The bill would build, not destroy, public confidence in the death penalty, and would raise, not diminish, the chances of apprehending and punishing those truly guilty of capital crimes.

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