Death Penalty Litigation in the U.S.

Editor's note:

The following post discusses the death penalty in the United States, including those states in which it is legal and implemented. The post then focuses on the right to counsel, which is available to all defendants who face or are already on death row, and how the demand for counsel in these cases exceeds the supply. 

Melanie Scheible
September 17, 2014

Glad you came back! As we discussed, there are TONS of ways for lawyers to get involved in public interest work or pursue a career devoted to championing the public interest. One area I’ve recently been learning more about is death penalty litigation. In the U.S., death penalty laws are made up of a complex patchwork of state and federal statutes and case law. Today, 32 states and the federal government still allow the death penalty, though 7 of those states are not currently implementing their death penalty statutes. And, 18 states do not have a death penalty. As of the first of this year, there were 3,070 people on death row in the United States. Since then, 27 have been executed, and an unknown number of additional people have been sentenced to death.

Often, if not usually, defendants on trial in capital cases cannot afford their own counsel. In every state, these defendants are entitled to counsel at the cost of the state. Different states have different mechanisms for assigning counsel to indigent clients, some have public defenders paid by the state who are assigned to capital cases, others appoint local attorneys, and some partner with private organizations to match defendants with appropriate pro bono services. In a few cases, lawyers who specialize in death penalty work will take on capital defendants through non-profit agencies, the pro bono arm of a large firm, or on their own. The demand for pro bono legal assistance for clients on death row exceeds the supply. This leaves many death row clients with over-worked, underpaid, and even inexperienced attorneys who struggle to provide the client with the zealous representation. In turn, many attorneys who handle capital cases are brought in during appeals stages and must work to learn and overcome a previous attorney’s decisions.