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Death by Lottery: Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants
Bright, Stephen B.
Bright, Stephen B.
Abstract
After the execution of Washington Goode, a black man sentenced to be hanged for murder in Massachusetts in 1848, the Boston Herald observed that if a “white man who had money had committed the same crime, he would not have been executed.†The same can and has been said with regard to many executions which occur today. A united States Supreme Court law clerk observed after a year of reviewing petitions in capital cases that “[w]hether somebody received the death penalty very often seemed to be a function of the lawyers. . . . [T]he death penalty frequently results from nothing more than poverty and poor lawyering.†Poor people accused of capital crimes are frequently represented by inadequately compensated, inexperienced, and incompetent court-appointed attorneys. Poverty and poor lawyering may result in a less than vigorous defense at a trial where the death penalty is imposed. It may also mean less than full federal habeas corpus review. Failure of counsel to recognize a constitutional violation and properly preserve the issue may be deemed a waiver by the indigent defendant and a death sentence obtained in violation of the United States Constitution may be carried out.