Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided.
Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases.
There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.
In 2001, U.S. Supreme Court Justice, Ruth Bader Ginsburg commented: "People who are well represented at trial do not get the death penalty . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial."
- Almost all defendants who face capital charges cannot afford an attorney and rely on the state to appoint one for them. However, often times appointed attorneys are overworked, underpaid, lack critical resources, and are either incompetent or inexperienced. As a result when death sentences are set aside by the federal courts, it is often because among other reasons the trial attorney was so incompetent that the accused's constitutional right to effective counsel was violated. (See ACLU Report: "Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America")
- In 2009, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions conducted
an official visit to the United States to examine the administration of the death penalty
in Alabama and Texas. Alabama has the highest per capita rate of executions in the United States, while Texas has the
largest total number of executions and one of the largest death row populations after California and Florida. The Special
Rapporteur expressed concern about deficiencies in the administration of the death penalty in
Alabama and Texas, including "the lack of adequate counsel for indigent defendants." He called
for the two states "to establish well-funded, state-wide public defender services" and recommended
that "[o]versight of these should be independent of the executive and judicial branches." The state of Alabama has no statewide public defender system even though its death row occupants are overwhelmingly poor with 95% indigent. (See ACLU Report above)
- An examination of 461 capital cases by The Dallas Morning News found that nearly one in four condemned inmates has been represented at trial or on appeal by court-appointed attorneys who have been disciplined for professional misconduct at some point in their careers. ("Quality Of Justice" Dallas Morning News, September 10, 2000).
- In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state's disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).
- According to an investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, "an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away." An additional 9.5% inmates, "have received a new trial or sentencing because their attorneys' incompetence rendered the verdict or sentence unfair, court records show." (
- In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).
DPIC Report: "With Justice for Few: The Growing Crisis in Death Penalty Representation (1995)"