Murray v. Giarratano

Transcription

MURRAY v GIARRA TANO: A REMEDY
REDUCED TO A MEANINGLESS
RITUAL
GERALDINE SzoTr MOOHR
"The indigent, where the record is unclearor the errors are hidden, has only
the right to a meaningless ritual, while the rich man has a meaningful
1
appeal."
INTRODUCTION
In 1963, the Supreme Court ruled in Douglas v. California2 that the
criminal appellate process is reduced to a meaningless ritual when a
prisoner is not represented by an attorney. Accordingly, the Court
held that the United States Constitution mandated that the government provide appointed counsel to indigents to pursue direct appeals. 3 In 1989, however, the Supreme Court ruled in Murray v.
Giarratano4 that the Constitution does not require states to appoint
counsel to represent indigent death-row inmates in state postconviction appeals. 5 In order to understand this apparent anomaly, three
1. Douglas v. California, 372 U.S. 355, 358 (1963).
2. 372 U.S. 355 (1963).
3. Douglas, 372 U.S. at 357-58.
4. 109 S. Ct. 2765 (1989).
5. Murray v. Giarratano, 109 S. Ct. 2765, 2769-71 (1989). Giarratanowas initiated by an
inmate on Virginia's death-row who wanted an attorney to prepare his state habeas corpus
petition. Id. at 2767.
The case ultimately became a class action suit, partly in response to the following letter in
which Mr. Giarratano advised Judge Merhige of the United States District Court for the Eastern District of Virginia about the Kafkaesque predicament of a fellow inmate. On August 19,
1984, Mr. Giarratano wrote:
Dear Judge Merhige,
I am writing at this time to request guidance of the Court regarding a matter of
great concern....
A fellow co-plaintiff... Earl Washington, Jr., was transferred to the State Pen on
August 16, for execution on September 5, 1985. Mr. Washington has all of his State
post-conviction remedies open to him: unfortunately Mr. Washington is mentally
incapable of acting in his own behalf. The Virginia Supreme Court has denied a
request to appoint counsel to assist him in pursuing a petition for state habeas
corpus; or to stay the mandate. Because of his indigency he cannot retain counsel.
Ms. Marie Deans, Director of the Virginia Coalition on Jails and Prisons, has spoken with well over 50 attorneys in hopes that one would assist on apro bono basis. To
765
766
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:765
highly complex and interrelated issues must be assessed. First, one
must determine the extent to which the Constitution's sixth and
fourteenth amendments provide convicted criminals with procedural protections. 6 Second, the examination of the scope of these
protections must take into account the complicated area of state collateral proceedings2 Third, these considerations must be augmented by the special treatment courts accord capital punishment
8
cases.
By ruling that the Constitution does not provide indigent death-
row inmates with the right to counsel in state postconviction proceedings, the Court incorrectly assessed those issues and effectively
altered the jurisprudence of procedural due process. 9 Furthermore,
Giarratano limits the judiciary's responsibility to monitor the death
sentence. 10 Finally, to reach its decision, the plurality employed a
formal, definitional analysis that results in an incomplete evaluation
of the multiple constitutional doctrines at issue."1
Does the Constitution mandate appointment of counsel for deathdate all of these efforts have failed. The situation as described above has become
common here of late. Ten days ago, with permission of the U.S. Supreme Court, I
filed two cert. petitions on behalf of another co-plaintiff in the same situation, and
circumstances.
I feel an enormous sense of responsibility with Mr. Washington's life at stake, and
am at a loss as to how to proceed. The allegations in my pro se complaint encompass
this very dilemma.... It seems that my co-plaintiff will be executed before ... any
proper State relief could be sought.
Joint Appendix 1-2, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-411).
Judge Merhige solicited attorneys to assist Mr. Washington, without success. Brief for Respondent at 5, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-411). An attorney who
was working on another death penalty case filed an emergency petition for writ of habeas
corpus one week before Mr. Washington's scheduled execution and the court granted the stay
a few days before the sentence was to be imposed. Id. A representative of Virginia's Attorney
General Office testified at trial that the state was prepared to carry out the sentence regardless
of whether Mr. Washington was represented by counsel. Id.
6. The sixth amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an
impartial jury of the state and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
U.S. CONsT. amend. VI.
The due process and equal protection clauses of the fourteenth amendment provide that
"nor shall any state deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.
CONST. amend. XIV, § 1; see infra notes 46-62 and accompanying text (discussing Supreme
Court cases invoking textual basis for right to counsel).
7. See Giarratano, 109 S. Ct. at 2771.
8. See id. at 2769 (recognizing procedural constraints applicable when capital offender
sentenced to death).
9. See infra text accompanying notes 200-18 (identifying jurisprudential shift).
10. See infra text accompanying notes 232-44.
11. See infra text accompanying notes 278-80 (critiquing Court's analysis in Giarratano).
1990]
MURRAY V. GIARRATANO
row inmates in postconviction proceedings? This Note concludes
that the Court erred when it answered this question in the negative.
That is, once the state chooses to provide collateral review of criminal cases, the state is constitutionally required to make these proceedings meaningful by providing counsel to the indigent
petitioner. Part I places Giarratanoin the context of collateral proceedings. Parts II and III present the historical background and
current legal status of the right to counsel and examine the role of
the federal courts in capital punishment cases. Part IV recounts the
procedural history of Giarratanoand the holdings of the plurality decision. Part V analyzes the plurality's decision and concludes that
Giarratano eviscerates the right of defendants in capital cases to a
constitutional trial and sentence. Part VI considers the implications
of this decision, and Part VII suggests that Congress enact legislation to effectively require states to appoint counsel for indigent
death-row inmates.
I.
POSTCONVICTION PROCEEDINGS
To understand Giarratano,one must consider its context: Deathrow inmates, tried and sentenced under state law, seek the "Great
Writ" of habeas corpus, which, if granted, theoretically results in the
petitioner's release from prison.12 Habeas corpus is considered one
of the most important constitutional protections of individual liberty. 13 It is based on the principle that the state is accountable to
the judiciary for a person's imprisonment. 1 4 The habeas court entertains claims that allege a prisoner is being held in violation of the
12. Wright & Miller, In Your Court: StateJudicialFederalismin CapitalCases, 18 URBAN LAwv.
659, 663 n.16 (1986) (observing that reality is that state is given opportunity to recharge,
retry, or resentence defendant).
13. See Chemerinsky, Thinking About Habeas Corpus, 37 CASE W. RES. L. REv. 748, 755
(1987) (explaining that expansion of federal habeas powers paralleled expansion of individual
liberty achieved by incorporation of Bill of Rights through due process clause of fourteenth
amendment, which increased likelihood that states might violate Constitution, especially
in area of criminal procedure). See generally W. DUKER, A CoNSTITurIONAL HISTORY OF HABEAS
CORPUS (1980) (examining writ's English origins, extension in British Colonies of North
America, scope, and application); R. SOKOL, FEDERAL HABEAS CORPUS (2d ed. 1969) (setting
forth case law and statutes concerning federal habeas corpus independent of conceptual
problems surrounding writ); Oaks, Legal History in the High Court-HabeasCorpus, 64 MICH. L.
REV. 451 (1966) (examining three 1962 Supreme Court decisions involving habeas); Rosenn,
The Great Writ-A Reflection of Societal Change, 44 OHIO ST. L.J. 337 (1983) (emphasizing expansion and contraction of federal habeas corpus influenced by changes in society); Wechsler,
Habeas Corpus and the Supreme Court: Reconsidering the Reach of the Great Writ, 59 U. COLO. L. REv.
167 (1988) (recounting source and development of modern habeas corpus and noting recent
restrictions on its scope through application of strict procedural default rules).
14. See Fay v. Noia, 372 U.S. 391, 401-02 (1963) (recognizing function of habeas corpus
is to remedy whatever society deems to be intolerable restraints).
768
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:765
Constitution. 15 In the context of a capital punishment case, a claim
that the death penalty was imposed as a result of constitutional error
at trial or sentencing provides
application. 16
sufficient
grounds
for the
Both the Constitution 17 and congressional statute' 8 provide the
right to habeas corpus. The statutes are controversial because they
purposely interpose the federal judiciary between the individual
prisoner and the state.' 9 In Fay v. Noia,20 a landmark case in the
history of habeas jurisprudence, the Supreme Court determined
15. On the federal level, 28 U.S.C. § 2254(a) (1982) empowers courts to entertain petitions from prisoners convicted in state court. The statute reads:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalfofa person in custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).
16. See infra text and accompanying notes 111-36.
17. See U.S. CONsT. art. 1, § 9, cl. 2. (stating "[tihe privilege of the Writ of Habeas
Corpus shall not be suspended unless when in cases of Rebellion or Invasion the public Safety
may require it").
18. The firstJudiciary Act provided that habeas applied to persons sentenced under federal law, and authorized the United States courts to grant writs "for the purpose of an inquiry
into the cause of the commitment." Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789). Congress
expanded the scope of habeas after the Civil War when it granted federal courts the power to
hear petitions of state prisoners. Act of February 5, 1867, ch. 28, 14 Stat. 385 (codified at 28
U.S.C. §§ 2241-2255 (1982); see supra note 15 (providing text of § 2254(a)).
19. See Redish, Abstention, Separation of Powers, and the Limits of theJudicialFunction, 94 YALE
I.J. 71, 111 (1984) (explaining that post-Civil War Congress acted because of failure of southem state courts to protect individuals); Wechsler, supra note 13, at 180-81 (noting executive
and judicial discomfiture over habeas corpus but concluding that gain of vindication of constitutional rights justifies those costs). For other useful materials examining the controversial
role of the federal courts in litigating constitutional claims previously decided by state courts,
see Bator, Finality in CriminalLaw and Federal Habeas Corpusfor State Prisoners, 76 HARv. L. REV.
441 (1963) (arguing that habeas should be restricted to inquiry by federal courts into adequacy of state process thereby avoiding redundant relitigation); Cover & Aleinikoff, Dialectical
Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035 (1977) (positing that habeas corpus
review of decisions of state criminal courts creates dialogue that fosters development of law);
Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247 (1988) (attempting to reconcile historically broad scope of Writ with recent decisions that restrict access to habeas); Friendly, Is
Innocence Irrelevant? CollateralAttack on CriminalJudgments, 38 U. CH. L. REv. 142 (1970) (arguing that convictions should be subject to collateral attack only when prisoner supplements
constitutional plea with colorable claim of innocence); Meltzer, State Court Forfeituresof Federal
Rights, 99 HARV. L. REV. 1128 (1986) (examining tension between tradition of state autonomy
and need for federal supervision of state court forfeitures and noting need for federal standards to limit scope of state court procedural defaults); Peller, In Defense of Federal Habeas
Corpus Relitigation, 16 HARV. C.R.-C.L. L. REV. 579 (1982) (noting that rehearing by federal
habeas courts of constitutional claims is not redundant litigation when state courts failed to
discover valid claim); Robbins, The Habeas Corpus Certificate of ProbableCause, 44 OHIo ST. L.J.
307 (1983) (examining merits of contention that costs of habeas corpus inquiry on finality is
not outweighed by its ability to uphold prisoner's liberty); Robbins, Whither (Or Wither) Habeas
Corpus?: Observations on the Supreme Court's 1985 Term, 111 F.R.D. 265 (1986) (discussing key
Supreme Court habeas cases of 1985 term and suggesting that regard for "quality ofjustice"
should guide courts through resulting procedural maze); Yackle, ExplainingHabeas Corpus, 60
N.Y.U. L. REV. 991 (1985) (stating that habeas is often request for state court adjudication).
20. 372 U.S. 391 (1963).
1990]
MURRAY v. GIARRATANO
769
that the federal courts are empowered to hear issues that have not
previously been raised at the state trial.2 ' Noia claimed that his coerced confession violated the Constitution. 2 2 The district court
ruled, however, that the failure to raise the issue at trial or direct
appeal barred its further consideration in a federal habeas proceeding. 23 The Supreme Court disagreed, holding that the prisoner
could raise the issue unless there had been a deliberate attempt to
bypass the state's procedural rules. 24 Noia thus expanded the power
of the federal courts to oversee the constitutionality of state
convictions.
In response to the expansion of the availability of the federal
habeas remedy, the states modernized their postconviction procedures by passing statutes or rules that allow inmates to file challenges to the constitutionality of the conviction or sentence. 25 In
addition, recent developments in federal habeas corpus law have increased the significance of state postconviction proceedings. 26 For
instance, federal courts will not usually hear a habeas suit until the
inmate has exhausted all state court remedies. 2 7 In addition, federal
21. Fay v. Noia, 372 U.S. 391, 398-99 (1963); see Townsend v. Sain, 372 U.S. 293,310-19
(1963) (cataloging specific guidelines to govern federal habeas review); Sanders v. United
States, 373 U.S. 1, 15-17 (1963) (ruling that federal courts possess discretion to hear successive applications for writ even when second application presented claim identical to previous
application). The expansion of habeas corpus review at the federal level began in Brown v.
Allen, 344 U.S. 443 (1953). In Brown, the Court held that claims of racial discrimination and
coerced confession implicated constitutional issues under the equal protection and due process clauses that could be addressed in a habeas proceeding. Id. at 465-87. Brown also established the right of state prisoners to obtain an independent federal review on habeas, in
addition to the request for a discretionary certiorari hearing. Id. at 489-97. Prior to Brown,
the Court heard a habeas claim alleging denial of counsel at a federal trial. Johnson v. Zerbst,
304 U.S. 458 (1938). Zerbst opened habeas review for claims that could not be corrected in
normal criminal proceedings and resulted in appointment of counsel at federal trials. Id. at
462.
22. Noia, 372 U.S. at 394-96.
23. Id at 395-96.
24. See id. at 438 (reasoning that Supreme Court's function of accommodating both state
criminal law and prisoner's rights is more meaningful when grounded in complete record
provided by federal habeas court).
25. D. WILKES, FEDERAL AND STATE POST CONVICTION REMEDIES AND RELIEF 26 (1983 &
Supp. 1989).
26. Id. at 7-8 (explaining that state postconviction is integral part of collateral proceedings); see Coleman v. McCormick, 874 F.2d 1280, 1294 (9th Cir. 1989) (Reinhardt, J., concurring) (commenting that although Noia extended reach of Great Writ "deep into state court
adjudication," more recent cases have invoked procedures that limit claims that federal courts
can hear).
27. The relevant statute provides that the applicant must exhaust all available state court
remedies unless no availablestate procedure exists to protect the rights of the prisoner or
circumstances exist which render such procedures ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b) (1982). Further, as long as the applicant has the right to raise, "by
any available procedure," the question presented, the applicant is not considered to have
exhausted the state remedy. 28 U.S.C. § 2254(c).
At least one commentator questioned whether the exhaustion requirement might impose a
constitutional right to state postconviction relief. See I. ROBBINS, THE LAw AND PROCESSES OF
courts will not generally review claims procedurally barred under
state law.2 8 Other examples of the reliance of federal courts on
state collateral proceedings include the rules governing the presumption of correctness given state court decisions, 29 as well as the
consideration provided petitions previously raised in state habeas
proceedings. 30 These procedural rules increase the responsibility of
the states to enforce constitutional protections at trial and on direct
31
review.
The initial petition to the state postconviction court3 2 begins the
habeas process by setting forth all allegations of constitutional error
at trial, sentencing, or appeal.3 3 The prisoner's right to an apPOST-CONVICTION REMEDIES 113 (1982) (raising possibility that state collateral review may be
federal constitutional obligation as condition precedent to invocation of exhaustion requirement and noting that question has not been answered because states provided postconviction
procedure through legislation).
28. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (ruling that prisoner must show
that failure to review will cause fundamental miscarriage ofjustice); Wainwright v. Sykes, 433
U.S. 72, 90-91 (1977) (holding that prisoner must show cause for default and that prejudice
resulted from unlitigated state claims), reh'g denied, 434 U.S. 88 (1977).
29. See Ford v. Wainwright, 477 U.S. 399, 423 (1986) (discussing 28 U.S.C. § 2254(d)
criteria for presumption of correctness). Section 2254(d) provides that the state court's decision shall be presumed to be correct, unless the merits of the factual dispute were not resolved; the factfinding procedure was not adequate to afford a full and fair hearing; the
material facts were not adequately developed; the state court lacked subject matter or personal jurisdiction; the applicant was an indigent and the state failed to appoint counsel to
represent him; the applicant did not receive a full, fair, and adequate hearing; the applicant
was otherwise denied due process of law; or if the federal court concludes that the factual
determination is not fairly supported by the record. 28 U.S.C. § 2254(d) (1982).
30. See Sanders v. United States, 373 U.S. 15, 17-19 (1963) (holding that successive petitions may raise claims in federal habeas corpus only when state court did not rule on merits).
Currently, the federal rules provide that a second or successive petition may be dismissed if it
fails to allege new or different grounds for relief and the prior determination was on the
merits, or if the failure of the petitioner to assert those grounds in a prior petition constituted
an abuse of the writ. See Rules Governing Section 2254 Proceedings in the United States
District Courts, Rule 9(b), 28 U.S.C. § 2254 (1982).
31. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (observing that barring mixed petitions, including both exhausted and unexhausted claims, from federal habeas consideration
will facilitate state court review of all claims of constitutional error).
32. In this Note, "habeas corpus" or "federal postconviction" refers to federal proceedings, "state habeas" or "postconviction" refers to state actions, and "collateral" includes all
judicial proceedings after the first direct appeal.
The nine-step model posits three stages of proceedings, from initial hearing through final
appeal, in each of three forums, the state criminal system, the state postconviction system, and
the federal habeas corpus system. See Wright & Miller, supra note 12, at 664-65 (presenting
diagrams outlining ideal model and citing deviations from it); see also Mello, FacingDeath Alone:
The Post-Conviction Attorney Crisis on Death Row, 37 AM. U.L. REv. 513, 520 (1988) (outlining
stages of collateral relief available to state prisoners).
After conviction and sentencing, the capital prisoner has the right to an automatic direct
appeal. See L. YACKLE, POSTCONV crION REMEDIES 1-2 (1981) (noting that direct review of
statejudgments is automatic in most states). This appeal is usually heard by the state's highest court. Amsterdam, In Favorem Mortis, 14 HUM. RTS. 14, 16 (1987). The indigent prisoner
is represented at direct appeal by appointed counsel. Douglas v. California, 372 U.S. 353, 358
(1963) (ruling that fourteenth amendment mandates appointed counsel at appeal).
33. See L. YACKLE, supra note 32, at 433 (commenting that fact pleading results in summary dismissal of many petitions). In Giarratano,the inmates requested that attorneys be ap-
1990]
771
pointed attorney to assist in the preparation of the petition depends
on a particular state's law and whether the court has a mandatory or
discretionary obligation to appoint counsel.3 4 A denial of the petition may be appealed through the state appellate system to the
state's highest court.A5 After state remedies are exhausted, the prisoner may file a habeas corpus petition in federal district court.36 In
the past, indigent inmates were unrepresented at this stage unless
they had volunteer counsel. Now, however, federal law provides for
the appointment of counsel for petitioners on death row.3 7 The
prisoner may appeal an adverse decision through the federal court
system.38
In a capital punishment case, if the state sets an execution date
after the first direct appeal, the prisoner must obtain a stay of execution, "in order to remain alive to pursue post-conviction remedies."'3 9 An inmate may also choose to pursue state or federal
discretionary review; these proceedings are independent of the state
or federal habeas review.40 The grounds for discretionary appeal
differ from those that courts consider in habeas corpus. 4 1 Moreover, the inmate may apply for certiorari to the United States
Supreme Court following affirmance by the highest state court or
federal court review. 42 If all appeals fail, the inmate can request that
pointed to assist in the preparation of these initial petitions. Murray v. Giarratano, 109 S. Ct.
2705, 2767 (1989).
34. See Wilson & Spangenberg, State Post-Conviction Representationof Defendants Sentenced to
Death, 72 JUDICATURE 331, 334 (1989) (noting that of 36 death penalty states surveyed, two do
not provide counsel at postconviction, 15 do so on discretionary basis, and 19 mandate appointed counsel on request).
35. Amsterdam, supra note 32, at 16.
36. Id.
37. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4393 (1988) (to be
codified at 21 U.S.C. § 848(q) (4)-(10)). The Act states that any indigent state prisoner under
sentence of death "shall be entitled to the appointment of one or more" experienced attorneys and when reasonably necessary, with "investigative, expert or other services" for federal
habeas corpus proceedings under 28 U.S.C. § 2254 and any subsequent post-conviction and
clemency proceedings. For commentary on the circumstances leading to the inclusion of the
counsel provision, see Coyle, The Drug Bill's Secret Provision, NAT'L L.J., Feb. 20, 1989, at 3
(identifying civil liberties groups as force behind provision).
38. If, despite a negative decision, the lower court believes that the claim has some validity, it issues a certificate of probable cause, on the basis of which the appellate court schedules
a hearing. See Barefoot v. Estelle, 463 U.S. 880, 896-905 (1983) (discussing role of probable
cause in habeas corpus proceedings).
39. Mello, supra note 32, at 520 (explaining that state may set execution date after affirmance of conviction and sentencing at direct appeal, and that date is determined either by court
or governor, depending on state law).
40. Id.
41. See Amsterdam, supra note 32, at 16 (stating grounds for certiorari can be characterized as challenge to constitutionality of state statute which state court held was viable, whereas
grounds for habeas corpus or postconviction involve challenge to states' infringement of federal constitutional right).
42. American Bar Association Task Force on Death Penalty Habeas Corpus, Recommendation and Report, Towarda MoreJust and Effective System of Review in State Death Penalty Cases, 33
772
[Vol. 39:765
the executive branch alter the sentence on grounds of clemency. 43
If clemency is denied, another round of emergency postconviction
proceedings begins in both state and federal trial courts, followed
by the possibility of additional appeals through both systems. 44
II. THE
A.
RIGHT TO APPOINTED
COUNSEL
The FundamentalRight to Appointed Counsel at Trial
In Powell v. Alabama,45 the Supreme Court reviewed the infamous
Scottsboro case, in which several black youths were tried and convicted for the rape of two white girls. 46 In reversing the defendants'
convictions and death sentences, 4 7 the Court established the right to
appointed counsel at state trials in capital punishment cases; 48 the
Court derived the right to appointed counsel from the sixth amendment. 49 Specifically, the Court ruled that denial of counsel was unconstitutional because the right to counsel is fundamental;
therefore, its denial violated the principles of liberty and justice.5 0
The fact that even an intelligent and educated person lacked the
skill and knowledge necessary to prepare a defense motivated the
ruling that a court should appoint counsel in capital cases in which
defendants were indigent and unable to defend themselves. 5 1
Ten years later, in Betts v. Brady,5 2 the Court refused to extend the
right to counsel to noncapital defendants. Betts, convicted of robbery, challenged the denial of his request that the judge appoint a
n.1 1 (1989) (reported by Professor Ira P. Robbins) [hereinafter Robbins Report] (summarizing steps inmate may take to secure postconviction relief.
43. Id.
44. Id.
45. 287 U.S. 45 (1932).
46. Powell v. Alabama, 287 U.S. 45, 51-52 (1932). The defendants were described as
"young negroes, ignorant, illiterate, and surrounded by hostile sentiment." Id. at 57-58.
Each trial was completed in one day. Id. at 50.
47. Id. at 68-69.
48. See id. at 71 (ruling that proforma designation of counsel on morning of trial denied
defendants effective and substantial aid in violation of due process).
49. Id. at 65-66. In this early incorporation ruling, the Court held that the fourteenth
amendment extended the right to counsel to defendants at state trials and required that states
honor this fundamental right. Id. at 71. For a useful historic perspective on the extension of
federal rights to states in this area, see D. MEADOR, PRELUDES TO GIDEON (1967) (examining
rights in context of three years of litigation pursued by appointed counsel on behalf of four
inmates); Cushman, Incorporation: Due Process and the Bill of Rights, 51 CORNELL L.Q 467, 46870 (1966) (focusing on incorporation debate); Lacy, The Bill of Rights and the FourteenthAmendment: The Evolution of the Absorption Doctrine, 23 WASH. & LEE L. REv. 37 (1966) (discussing
incorporation of first eight amendments through liberty aspect of fourteenth amendment's
due process clause as made applicable to states); Mykketvedt, Fourteenth Amendment Procedural
Due Process: From the "FairTrial" to Selective Incorporation, 9 GA. ST. BJ. 157 (1972) (discussing
historical development of fourteenth amendment's due process clause).
50. Powell, 287 U.S. at 68.
51. Id. at 68-71.
52. 316 U.S. 455 (1942).
1990]
lawyer to represent him at trial. 53 The Court ruled that although
the sixth amendment does not provide an absolute right to counsel,
the due process clause of the fourteenth amendment could "in certain circumstances" require the appointment of counsel. 54 The
Court held that the nature of the specific case, rather than the nature of a trial, triggered the due process protection. 5 5 Thus, under
Betts, a defendant received due process protection when "special circumstances" required it or if the defendants were unable to look
after their own interests or if they faced possible capital
56
punishment.
Twenty years after Betts, the Supreme Court in Gideon v. Wainwright 5 7 reconsidered the Betts "special circumstances" formulation.
Clarence Earl Gideon was sentenced to a five-year term for breaking
into a pool hall. 58 In his habeas corpus petition, Gideon claimed
that the trial court's refusal to appoint counsel denied him rights
"guaranteed by the Constitution and the Bill of Rights." 59 The
Court determined that Gideon was denied due process, and in so
doing, overruled Betts.60 Applying the reasoning of Powell, the Court
concluded that due process required state courts to appoint counsel
to indigent defendants charged with felonies. 6 1 Moreover, the
Court noted that its decision was based on the obvious truth that
53. Betts v. Brady, 316 U.S. 455, 457 (1942).
54. Id. at 461-62.
55. Id. at 462. Although the Court rejected the reasoning in Powell that the adversarial
nature of a trial justified appointed counsel, it agreed that counsel in Powell had been vital. Id.
at 463. The Court distinguished Powell on three grounds. First, Betts was not a capital case.
Id. at 457. Second, Betts was tried without a jury, a normal practice in Maryland, which allowed the judge more control over the proceedings. Id. at 472. Third, Betts was able to take
care of his own interests because he was a grown man and was familiar with the trial process.
Id.
56. Id. at 463. After Betts the courts gradually adopted the view that the possibility of a
death sentence triggered appointed counsel. See Bute v. Illinois, 333 U.S. 640, 674 (1948)
(recognizing that had charges in case been capital charges, court would have been required to
assign counsel); see also Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (ruling that appointed
counsel at pretrial arraignment mandated by capital offense); Note, Due Process in State Capital
Cases: The Right to Counselfor Indigent Defendants Beyond the InitialAppeal as of Right, 61 N.Y.U.
REv. L. & Soc. CHANGE 61, 63-73 (1978) (tracing development of right to counsel). For commentary on Betts, see Allen, The Supreme Court, Federalism, and State Systems of CriminalJustice,8
DE PAUL L. REv. 213, 223-33 (1959) (explaining and criticizing distinction Court adopted
between capital and non-capital cases); Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on "The Most Pervasive Right" of an Accused, 30 U. CHI. L. REv. 1, 2 (1962)
(suggesting that regardless of Bett's non-capital posture, case for significant constitutional error could have been made).
57. 372 U.S. 335 (1963). For a perceptive discussion of this landmark case, see Israel,
Gideon v. Wainwright. The "Art" of Overruling, 1963 Sup. CT.REv. 211, 229-34 (1963) (examining techniques used by Gideon majority in overruling Betts).
58. Gideon v. Wainwright, 372 U.S. 335, 336-37 (1963).
59. Id. at 337.
60. Id. at 345.
61. Id. at 341.
774
[Vol. 39:765
assistance of counsel was a prerequisite to a fair trial because of the
judicial system's adversarial nature. 6 2 The Court established the
right to appointed counsel at felony trials, based upon the sixth
amendment's right to counsel and the fourteenth amendment's due
63
process clause.
B.
The Rights of Meaningful Access and Appointed Counsel on Appeal
In Griffin v. Illinois,64 the Supreme Court considered the right of
meaningful access to the courts when a defendant appeals the trial
court's decision. Specifically, Griffin challenged the practice of
charging a fee for trial transcripts that were required to prepare the
case for appeal.6 5 Griffin claimed that the fee was unconstitutional
because it effectively barred indigents from the appeals process. 66
The Court ruled that the fourteenth amendment's due process and
equal protection clauses prohibited this indirect denial of access. 67
The Court believed that appeals are such an integral part of the
criminal justice system that for purposes of constitutional protection
there is no relevant distinction between the trial and appeal. 68 Accordingly, the Court held that the Constitution's due process requirements prohibited the fee because it bore no rational
relationship to the purpose of the trial.6 9 The Court's separate
equal protection analysis rested on the finding that appellate courts
reversed a substantial number of convictions; 70 as a consequence,
the transcript fee placed indigents disproportionately at risk of los71
ing life, liberty, or property.
The jurisprudence of the fourteenth amendment was further developed in Douglas v. California,7 2 in which the appellants challenged
62. Id. at 344; see Mello, Is There a Federal Constitutional Right to Counsel in Capital PostConviction Proceedings?, 79J. CRIM. L. & CRIMINOLOGY 1065, 1104 (1989) (arguing that adversarial nature ofjudicial system requires appointment of counsel).
63. Gideon, 372 U.S. at 342-43.
64. 351 U.S. 12 (1956).
65. Griffin v. Illinois, 351 U.S. 12, 13 (1956). The Illinois appellate courts required that
a list of alleged errors accompany a request for appeal, on which the court relied to decide
whether or not to grant the appeal. Id. at 13-14. The State of Illinois agreed that the trial
transcript was necessary to prepare the list. Id. at 16.
66. Id. at 13-15.
67. Id. at 17-20.
68. Id. at 18.
69. Id. at 22 (Frankfurter, J., concurring).
70. Id. at 18-19 (noting that "[s]tatistics show that a substantial proportion of criminal
convictions are reversed by state appellate courts").
71. See id. at 19 (commenting that "[t]here is no equal justice where the kind of a trial a
man gets depends on the amount of money he has").
72. 372 U.S. 353 (1963). The defendants in Douglas, the companion case to Gideon, were
convicted of non-capital felonies. Douglas v. California, 372 U.S. 353, 354 (1963).
1990]
775
the state's denial of appointed counsel at the appellate level. 75 The
Court employed both the due process and equal protection analyses of Griffin to require appointed counsel at appeal. 74 Applying the
equal protection analysis, the Court held that Griffin and Douglas
were analogous in that both involved discrimination against indigents. 7 5 A state, once it granted appellate review, could not discriminate on the basis of wealth.7 6 Douglas also applied a due
process analysis and concluded that denial of counsel at appeal was
unconstitutional because, in this particular instance, the state appellate court in effect ruled on the merits of the case without a
hearing. 77
C. The Rights of Meaningful Access and Appointed Counsel
at CollateralProceedings
The Supreme Court considered the right of meaningful access to
habeas corpus proceedings in Johnson v. Avery. 78 Johnson, a jailhouse lawyer cum writ-writer, 7 9 challenged a prison regulation that
prohibited an inmate from assisting other inmates in the preparation of habeas petitions.8 0 The Court ruled that this regulation was
unconstitutional because it denied prisoners who were receiving
73. Id. at 354.
74.
Id. at 355-56. The Supreme Court later employed Douglas to expand the scope of
professional services due the defendant at trial. See Evitts v. Lucey, 469 U.S. 387, 391-400
(1985) (ruling that right to appointed counsel at appeal meant that such assistance must be
effective); see also Ake v. Oklahoma, 470 U.S. 68, 79-85 (1985) (adding right to psychiatric
services when defendant establishes threshold showing that sanity is significant factor in
defense).
75. Douglas, 372 U.S. at 355 (writing that "[iun either case the evil is the same: discrimination against the indigent").
76. Id. at 358.
77. Id. at 355-56. California procedure required that, in cases of requests for counsel,
the court make an independent investigation of the record. Id. at 355. The court would appoint counsel only if it determined that counsel was advantageous to the defendant or helpful
to the court. Id. The court, therefore, prejudged the merits of the claim, without benefit of
counsel, when it determined whether it should appoint counsel. Id. at 355-56.
78. 393 U.S. 483 (1969). For varying perspectives on pro se and prisoner assisted writwriting, see Flannery & Robbins, The Misunderstood Pro Se Litigant: More Than a Pawn in the
Game, 41 BROOKLYN L. REV. 769, 770 (1975) (commenting that many presume pro se claims are
frivolous and conclude that search for isolated valid claims does notjustify additional burden
on judicial system); Larsen, A PrisonerLooks at Writ-Writing, 56 CALIF. L. REV. 343, 345 (1968)
(citing lack of education as bar to inmate ability to recognize merits of claim); Robbins &
Herman, Pro Se Litigation, Litigating Without Counse" Faretta orfor Worse, 42 BROOKLYN L. REV.
629, 664 (1976) (concluding that courts are "neglecting their responsibilities in compelling
the civil pro se litigant to appear without counsel").
79. Strictly speaking, prisoners do not write writs, they write applications for the writ of
habeas corpus.
80. Johnson v. Avery, 393 U.S. 483, 484 (1969). The warden had transferredJohnson to
a maximum security building because he violated the regulation when he helped another prisoner. Id.
776
[Vol. 39:765
assistance full access to the courts.8 1 The Justices agreed that access to the courts, including habeas corpus courts, is fundamental
and cannot be denied or obstructed.8 2 By denying indigent, illiterate prisoners the right to obtain assistance from the only source
available, the state had prevented potentially valid claims from be88
ing heard.
The Court moved away from this principle, however, in Ross v.
Moffitt, 84 when it ruled that the states had no cohstitutional obligation to appoint counsel for indigents at discretionary review.8 5 Specifically, Ross refused to extend the right to counsel at appeal
mandated by Douglas because of the significant differences that existed between mandatory review of a criminal proceeding and discretionary review.8 6 In the Court's view, because the state had no
obligation to provide an appeal, no automatic inference of unfairness arose if the state refused to appoint counsel.8 7 Further, equal
protection did not mandate appointed counsel in every case because
the fourteenth amendment did not require absolute economic
equality.8 8 The Court also believed that the degree of discrimination in Ross was acceptable because denial of appointed counsel did
not preclude adequate review of the claim.8 9 The pro se appellant
81. Id. at 487.
82. Id. at 485. The Court based its decision on the "fundamental importance of habeas
corpus in our Constitutional scheme." Id. But see id. at 499 (White,J., dissenting) (expressing
doubt thatjailhouse lawyers provided effective access, citing lack of training and probability of
ulterior motives, leaving petitioner "as if he were accorded no help at all").
83. Id. at 487. The Court recognized that though an indigent prisoner could prepare a
pro se petition, the illiterate or uneducated prisoner is unable to prepare the petition without
some assistance. Id. at 488. Subsequent cases extended this reasoning. See Wolff v. McDonnell, 418 U.S. 539, 577-80 (1974) (granting assistance in civil rights cases to prisoners challenging prison conditions); Procunier v. Martinez, 416 U.S. 396, 419-22 (1974) (invalidating
regulation that barred law students and para-professionals employed by lawyers from seeing
inmate clients).
84. 417 U.S. 600 (1974). Claude Moffitt was convicted by a North Carolina court of
forgery and uttering a forged instrument and sentenced to two consecutive five-year terms.
State v. Moffitt, 9 N.C. App. 694, 695, 177 S.E.2d 324, 325 (1970), cert. denied, 190 S.E.2d 472
(1972). He imprinted a stolen check which was then cashed by a cohort; the participants
netted $29. Id. at 695, 177 S.E.2d at 325.
85. Ross v. Moffitt, 417 U.S. 600, 615 (1974). The Court also found that a state is not
required to appoint counsel to prepare applications for certiorari to the Supreme Court. Id.
at 617-18. The Court emphasized that it had itself denied applications for appointment of
counsel to those seeking certiorari to the Supreme Court and that it would be anomalous to
require the states to make an appointment of counsel to a federal court. Id.
86. Id. at 610. The grounds for discretionary appeal in North Carolina are fulfilled if the
subject of the claim has "significant public interest," the claim involves "legal principles of
major significance to the jurisprudence of the State," or the decision below is in probable
conflict with a decision of the Supreme Court. Id. at 613-14.
87. Id. at 611.
88. Id. at 612. The Court implicitly used an intent test to hold that discrimination was
not inherently unfair unless states intentionally singled out indigents and denied them meaningful access because of their poverty. Id. at 611-12.
89. Id. at 615.
1990]
777
was only "somewhat handicapped" because, given the grounds for
discretionary review, the court could make an informed decision
based on trial transcripts, briefs, and the appellate court's opinion. 90
In 1977, the Court reexamined the right of meaningful access in
Bounds v. Smith, 9 1 when it considered whether prison authorities
must maintain law libraries. The Court in Bounds ruled that access
to the courts is a fundamental right that requires the state to assist
inmates "in the preparation and filing of meaningful legal papers by
providing law libraries or adequate assistance from persons trained
in the law."' 92 The Court held that habeas corpus was of fundamental importance because it represents the first line of defense against
constitutional violations. 93 The consequence of finding habeas
corpus "fundamental" is that the state cannot deny or obstruct access to this proceeding. 94 Moreover, the Court distinguished Ross
because, unlike discretionary review, habeas claims raise unlitigated
issues requiring new legal research or advice to make a meaningful
initial presentation. 95
Notwithstanding Bounds, the Court in Pennsylvania v. Finley96 rejected the contention that the fourteenth amendment protected the
rights of appointed counsel and meaningful access to the courts in
postconviction proceedings. 9 7 In Finley, the petitioner challenged
90. Id. at 615-16.
91. 430 U.S. 817 (1977). Bounds affirmed Younger v. Gilmore, 404 U.S. 15 (1971) (per
curiam) (upholding district court's judgment that access includes all means petitioner might
require to receive fair hearing on all charges brought against petitioner or grievances alleged
by petitioner). Bounds v. Smith, 430 U.S. 817, 828 (1977).
92. Bounds, 430 U.S. at 828 (emphasis added). Commentators have given the disjunctive
"or" great attention. See, e.g., Flores, Bounds and Reality: Lawbooks Alone Do Not a Lawyer Make,
77 LAw LiBR. J. 275, 287 (1984-85) (positing that legal services programs are necessary to
provide meaningful access to courts); Hinckley, Bounds and Beyond: A Need to Reevaluate the
Right of PrisonerAccess to the Courts, 22 U. RiCH. L. REv. 19, 49 (1987) (arguing that Bounds'
definition of access to courts is flawed and should be expanded to meet needs of individual
prisoners); Potuto, The Right of PisonerAccess: Does Bounds Have Bounds?, 53 IND. LJ.207, 216-
26 (1977-78) (considering scope of ruling and whether it mandates both libraries and legal
assistance given inadequacy of library program approved); Smith, Examining the Boundaries of
Bounds: PrisonLaw Librariesand Access to the Courts, 30 How. LJ.27, 44 (1987) (concluding that
law libraries alone are inadequate to provide meaningful access to courts).
Interestingly, Justice Rehnquist anticipated the course of events when he noted that, "[i]f
'meaningful' access to the courts is to include law libraries, there is no convincing reason why
it should not also include lawyers appointed at the expense of the State." Bounds, 430 U.S. at
841 (Rehnquist, J., dissenting).
93. Bounds, 430 U.S. at 828.
94.
Id.
95. Id. at 827-28.
96. 481 U.S. 551 (1987). An earlier decision foreshadowing Finley involved the Court's
application of Ross to an ineffective assistance of counsel claim. See Wainwright v. Torna, 455
U.S. 586, 587-88 (1982) (per curiam) (ruling that, because respondent had no constitutional
right to counsel to pursue discretionary review by federal circuit court, respondent could not
be deprived of effective assistance of counsel by his retained attorney's failure to file timely
application for certiorari).
97. Pennsylvania v. Finley, 481 U.S. 551, 554 (1987).
778
[Vol. 39:765
the court-appointed attorney's withdrawal after advising the state
98
postconviction court that no "arguable basis for relief" existed.
The Court had previously ruled that an attorney could withdraw
from a case only if specific procedures had been followed. 9 9 The
Court noted that under Ross, states have no obligation to provide
collateral postconviction relief, and therefore, due process does not
require the state to appoint counsel or, consequently, to follow the
procedures that protect that right. 10 0
The Court in Finley also relied on Ross to rule that Pennsylvania
had not violated the guarantee of meaningful access to the courts.' 0 1
As stated, the Court in Ross determined that the use of trial records,
appellate briefs, and appellate court opinions by the reviewing court
provided the inmate sufficient access to the courts for purposes of
discretionary review. 10 2 The Court's decision in Finley extended
that holding to rule that those materials are also sufficient to satisfy
access to courts for purposes of postconviction review.1 0 3 Thus, the
right of meaningful access and the right to appointed counsel diverge at the postconviction stage. The right to meaningful access
extends through collateral proceedings, and includes "legal assistance."' 1 4 The right to appointed counsel, however, ends after di05
rect appeal.'
III.
CAPITAL PUNISHMENT
A. JudicialMonitoring of the Death Sentence
The Court assumed control over capital sentencing in 1972 by
ruling in Furman v. Georgia' 06 that a state's capital punishment stat98. Id. at 553.
99. See Anders v. California, 386 U.S. 738, 744 (allowing withdrawal of court appointed
attorney at appeal only when attorney believes case to be wholly frivolous, and has submitted
brief listing all arguable support for appeal), reh 'gdenied, 388 U.S. 924 (1967).
100. Finley, 481 U.S. at 556-57.
101. Id. at 557.
102. Ross v. Moffitt, 417 U.S. 600, 615 (1974).
103. Finley, 481 U.S. at 557.
104. Bounds v. Smith, 430 U.S. 817, 828 (1977).
105. Finley, 481 U.S. at 559.
106. 408 U.S. 238 (1972). For thoughtful commentary on the moral, philosophical, and
constitutional issues surrounding the death penalty, see W. WHITE, THE DEATH PENALTY INTHE
EIGHTIES: AN EXAMINATION OF THE MODERN SYSTEM OF CAPITAL PUNISHMENT (1987) (surveying effect of recent court decisions); Bedau, Thinking of the Death Penalty as a Cruel and Unusual
Punishment, 18 U.C. DAVIS L. REV. 873 (1985) (concluding that death penalty is excessively
severe punishment and therefore "cruel and unusual"); Brennan, ConstitutionalAdjudicationand
the Death Penalty: A View from the Court, 100 HARV. L. REV. 313 (1986) (concluding that death
penalty is always unconstitutional because it affronts human dignity); Gale, Retribution, Punishment, and Death, 18 U.C. DAVIS L. REV. 973 (1985) (arguing that because death penalty accomplishes none of purposes of punishment, not even retribution, it can never be justified);
Tabak, The Death of Fairness: The Arbitrary and Capricious Imposition of the Death Penalty in the
1990]
779
ute violated the eighth amendment's prohibition against cruel and
unusual punishment.' 0 7 Furman found that the final and irrevocable
nature of death makes it different from other punishments.' 0 8 The
Court noted that the death penalty is society's ultimate condemnation, the judgment that rehabilitation is impossible. 09 Thus,
Furman prohibited the arbitrary administration of capital punishment, holding that such "freakish" imposition of the penalty was
cruel and unusual. 1 10
The states responded to Furman in two primary ways, and the corresponding decisions of the Supreme Court established the judiciary's role in overseeing the local use of capital punishment. Some
states passed "guided discretion" statutes that legislated standards
to guide the trial court in determining when capital punishment is
warranted. 111 In Gregg v. Georgia,"1 2 the Court ruled that guided discretion statutes are facially constitutional.' '3 Gregg established the
principle that the judiciary bears the responsibility to monitor the
1980's, 14 N.Y.U. REV. L. & Soc. CHANGE 797 (1986) (stating that reality of death penalty is
that procedural due process is often administered unfairly); van den Haag, The Death Penalty
Once More, 18 U.C. DAVIs L. REV. 957 (1985) (discussing societal debate on merits of death
penalty); Zimring & Hawkins, CapitalPunishment and the Eighth Amendment: Furman and Gregg in
Retrospect, 18 U.C. DAVIs L. REV. 927 (1985) (discussing Furman v. Georgia and Gregg v. Georgia
and shortcomings of compounded holdings of death penalty cases).
107. Furman v. Georgia, 408 U.S. 238, 240 (1972) (per curiam). The Court published
nine separate opinions in which the Justices gave varying reasons for their decision. Justices
Brennan and Marshall opined that capital punishment violates the eighth amendment under
any circumstance. Id. at 305 (Brennan, J., concurring); id. at 314 (Marshall, J., concurring).
Justices Douglas, Stewart, and White each relied on the discriminatory manner in which the
death penalty was applied. Id. at 242-57 (Douglas, J., concurring); id. at 309-10 (Stewart, J.,
concurring); id. at 313 (White, J., concurring). Finally, Chief Justice Burger and Justices
Blackmun, Powell, and Rehnquist each filed separate opinions in which they stated that it is
beyond the duties of the Court to decide whether the death penalty is cruel and unusual
punishment. Id. at 403-05 (Burger, CJ., concurring); id. at 414 (Blackmun, J., concurring); id.
at 461-65 (Powell, J., concurring); id. at 465-70 (Rehnquist, J., concurring).
108. Id. at 289-306 (Brennan, J., concurring).
109. See id. at 306 (Stewart,J., concurring) (noting that capital punishment rejects rehabilitation as purpose for punishment).
110. Id. at 310 (Stewart, J., concurring).
111. See Amsterdam, supra note 32, at 49 (discussing post-Furman legislative action);
Greenberg, Capital Punishment as a System, 91 YALE LJ. 908, 915-16 (1982) (analyzing states'
reaction to Furman).
112. 428 U.S. 153 (1976).
113. Gregg v. Georgia, 482 U.S. 153, 207 (1976). In Gregg and its companion cases the
Court upheld the guided discretion statutes of three states. The Georgia statute established a
separate sentencing procedure at which the trial court heard evidence of statutorily prescribed aggravating circumstances and any mitigating factors that the defendant wished to
present. Id.; accord Proffitt v. Florida, 428 U.S. 242 (1976) (upholding Florida statute);Jurek v.
Texas, 428 U.S. 262 (1976) (upholding Texas statute); see Greenberg, supra note I 11, at 916
n.51 (noting that although statutes were held facially constitutional, they were not necessarily
constitutionally applied because Jurek's conviction was reversed and Proffit's sentence was
held invalid in subsequent suits).
780
procedures by which states impose capital punishment.'14
Other states passed mandatory laws requiring the imposition of
the death penalty for specific offenses.'1 5 This approach, however,
was rejected by the Court. 116 In Woodson v. North Carolina,1 17 for example, the Court cited several reasons for invalidating a statute
mandating the death penalty for murders committed in the perpetration of a robbery." 8 First, the mandatory sentence offended contemporary standards of decency because it was "unduly harsh and
unworkably rigid." 1 19 Second, the mandatory nature of capital sentencing under North Carolina law ignored Furman's ruling that the
death penalty could only be imposed in accordance with objective
standards.' 20 The Court accordingly invalidated the statute because, among other things, it failed to provide a standard by which
the judiciary could check the potentially arbitrary and capricious exercise of the state's power to impose the death sentence. 12 1 Finally,
the mandatory sentence failed to consider the character and record
of the defendant and the circumstances of the particular offense
prior to sentencing.' 22 As the Court stated, the "finality of death"
required the jury and the trial court to consider possible mitigating
factors.' 23 Thus, Woodson strengthened the federal judiciary's role
as the final arbiter of the constitutional safeguards required before
the state may impose the death penalty. 124 Specifically, the state's
criteria must be based on current and objective standards, and the
114. See Gregg, 428 U.S. at 204-06 (discussing courts' function as safeguard against random or arbitrary administration of death penalty).
115. See Greenberg, supra note 111, at 915-16 (examining mandatory death sentence
laws).
116. Id. at 916. In a series of cases, the Court invalidated the mandatory death penalty
laws of Oklahoma, Louisiana, and North Carolina. See Green v. Oklahoma, 428 U.S. 907, 907
(1976); Roberts v. Louisiana, 428 U.S. 325, 336 (1976); Woodson v. North Carolina, 428 U.S.
280, 305 (1976).
117. 428 U.S. 280 (1976).
118. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). In Woodson, four men robbed
a convenience food store during which the cashier was killed and a customer wounded. Id. at
283. Woodson remained as lookout while other participants entered the store. Id. Two of
the four men pleaded to lesser offenses, but Woodson and another participant were convicted
of murder and sentenced to death. Id. at 282-84.
119. Id. at 293. The Court reasoned that this marked departure from contemporary standards offended the eighth amendment's requirement that the death sentence be imposed only
in accordance with current standards. Id. at 301.
120. Id. at 302.
121. See id. at 303 (noting that purpose of objective standards is to guide and regularize
use of penalty and to make it possible for appellate court to review sentence).
122. Id.
123. See id. at 304 (reasoning that fundamental respect for humanity made consideration
of character of defendant and circumstances of offense indispensable part of death sentence
process).
124. See Wright & Miller, supra note 12, at 670-71 (stating that Court recognized right of
states to specify capital punishment, but balanced this by creating modem federal law of capital sentencing, which is based on federal principles and produces federal claims); Powell, Capi-
1990]
781
defendant must be judged on the facts and circumstances of the par25
ticular case.1
B. Death Sentence in Postconviction Proceedings
A close relationship exists between habeas corpus and the death
sentence. 126 Between 1976 and 1983, the Court supported close
scrutiny of the death sentence at postconviction proceedings.' 27
More recent decisions focusing on procedures at habeas corpus indicate that the Court's commitment to monitor constitutional violations at trial and sentencing in capital cases has wavered. 128 In cases
dealing directly with the death sentence, however, the Court has
maintained a continued commitment to the Woodson principles. 129
tat Punishment, 102 HARv. L. REv. 1035, 1038 (1989) (commenting on federalization of death
penalty jurisprudence).
125. Woodson, 428 U.S. at 303.
126. See Greenberg, supra note 111, at 911-12 (explaining that capital convictions and
sentences were brought under careful, systematic judicial scrutiny following Fay v. Noia, 372
U.S. 391 (1963), and expansion of accused's rights and enforcement of those rights against
states through incorporation of procedural safeguards into fourteenth amendment); see also
Berger, Born-AgainDeath (Book Review), 87 COLUM. L. REV. 1301, 1323-24 (1987) (noting that
capital cases often turn on doctrine of habeas corpus).
127. See, e.g., Enmund v. Florida, 458 U.S. 782, 801 (1982) (reversing death sentence because lack of intent to kill not taken into account); Eddings v. Oklahoma, 455 U.S. 104, 117
(1982) (requiring sentencer to consider any relevant mitigating evidence); Estelle v. Smith,
451 U.S. 454, 471 (1981) (banning pre-trial psychiatric examination of defendants without
counsel present when purpose was to gather evidence for use by state at trial); Adams v.
Texas, 448 U.S. 38, 49 (1980) (invalidating statutory provision for jury oath as form of qualification for jurors charged with capital sentencing); Beck v. Alabama, 447 U.S. 625, 645-46
(1980) (ruling that jury must be permitted to consider question of guilt of any lesser included
offense supported by record); Godfrey v. Georgia, 446 U.S. 420, 432 (1980) (deciding that
statutory aggravating circumstances may not be so broadly defined that they fail to guide
jury's discretion); Lockett v. Ohio, 438 U.S. 586, 606 (1978) (holding that jury must consider
all mitigating factors before sentencing); Gardner v. Florida, 430 U.S. 349, 362 (1977) (invalidating use of pre-sentence reports whose contents were not disclosed to defendant).
128. See, e.g., Smith v. Murray, 477 U.S. 527, 538 (1986) (denying habeas relief when defendant failed to take advantage of opportunities for relief within state system); United States
v. Bagley, 473 U.S. 667, 678 (1985) (imposing requirement of affirmative showing of prejudice affecting trial outcome when defendant claims prosecution suppressed material exculpatory evidence); Strickland v. Washington, 466 U.S. 668, 697 (1984) (determining that same
prejudice test governs counsel ineffectiveness claims in both direct appeals and federal collateral proceedings); Barefoot v. Estelle, 463 U.S. 880, 894 (1983) (allowing combination of
application for stays of execution and hearing on merits of habeas corpus petition); Rose v.
Lundy, 455 U.S. 509, 518-19 (1982) (requiring exhaustion of all federal and state habeas
claims in state court); Sumner v. Mata, 449 U.S. 539, 551 (198 1) (allowing strong deference in
habeas proceedings to findings of fact by state judges); Stone v. Powell, 428 U.S. 465, 494
(1976) (disallowing habeas claims of fourth amendment violations adjudicated in state
courts).
129. See, e.g., Booth v. Maryland, 428 U.S. 497, 509 (1987) (holding that victim impact
statement is irrelevant to capital sentencing decision, and its admission at penalty stage violates eighth amendment); Hitchcock v. Dugger, 481 U.S. 393, 399 (1987) (holding that in
capital case jury cannot be precluded from considering any aspect of defendant's character,
record, or circumstance of offense that defendant offers as mitigating factor); Ford v. Wainwright, 477 U.S. 399, 429 (1986) (O'ConnorJ, concurring) (ruling that safeguards surrounding death penalty extend through execution); Caldwell v. Mississippi, 472 U.S. 320, 340
782
[Vol. 39:765
For example, in Ford v. Wainwright,'"0 the Court considered
whether the Constitution placed any restrictions on the execution of
an insane person. 131 To determine whether the appellant was mentally competent at the time of the scheduled execution, Florida's
Governor convened a hearing at which only state-appointed psychiatrists testified.' 32 The Court stressed that all fact-finding procedures in capital proceedings must meet a heightened standard of
reliability; 3 3 the Court ruled that Florida's sanity hearing failed to
meet this standard for three reasons. First, the hearing failed to allow the prisoner an opportunity to offer evidence. 134 Second, the
prisoner had no opportunity to challenge or impeach the state-appointed psychiatrist's opinion. 3 5 Third, the fact that the final determination of competence for execution was vested in the executive
branch offended the notion of a neutral forum.' 3 6 Thus, Ford continued the Court's commitment of monitoring death penalty procedure by ruling that the exceptional safeguards surrounding capital
punishment extend through execution. 137 The Supreme Court's recent ruling in Murray v. Giarratano,'3 8 however, marks a departure
from the jurisprudence that the Ford decision evinces.
(1985) (vacating death sentence because prosecutor at penalty phase led capital jury to believe responsibility for sentence rested with appellate court); Ake v. Oklahoma, 470 U.S. 68,
83 (1985) (holding that state must provide access to psychiatric assistance on sanity issue at
time of offense); California v. Ramos, 463 U.S. 992, 999 (1983) (holding that qualitative difference of death requires correspondingly greater degree ofjudicial scrutiny of capital sentencing determination).
130. 477 U.S. 399 (1986).
131. Ford v. Wainwright, 477 U.S. 399, 405 (1986). For articles discussing Ford v. Wainwright's effect on procedural aspects of insanity, see Note, The Eighth Amendment, Due Process and
Insanity on Death Row, 7 N. ILL. U.L. REV. 89 (1987) (noting that Ford calls for revision of
procedural due process for insane convicts); Note, ConstitutionalLaw: Extent of ProceduralDue
Process Required to Adjudge the Competency of a CondemnedPrisoner, 38 U. FLA. L. REV. 681 (1986)
(discussing Court's implied requirement of full adversarial hearing to determine competency); Note, Fordv. Wainwright: The Supreme Court Reconsiders the ProceduralRequirementsfor PostConviction Sanity Determinations, 18 U. TOL. L. REV. 919 (1987) (hypothesizing that to be consistent with Ford, state procedures should allow defendant active role in insanity proceeding).
132. Ford, 477 U.S. at 403-04.
133. Id. at 411-12. The Court decided that a hearing was necessary to determine whether
appellant was sane because it was unconstitutional to execute an insane person, even when
that person was mentally competent at the time of offense, trial, and sentencing. Id. at 421-22
(Powell,J, concurring). The Court reasoned that to impose the death penalty upon an insane
person would be a "uniquely cruel penalty" because the insane person is unable to prepare
mentally and spiritually for death and because the death penalty's retributive effect is lost if
the defendant is unaware of the penalty's existence and purpose at the time the penalty takes
place. Id. (Powell, J., concurring).
134. Id. at 413.
135. Id. at 415.
136. See id. at 416 (reasoning that executive branch not neutral because it initiated and
directed entire prosecution).
137. See id. at 424 (Powell,J., concurring) (ruling that procedural due process protections
afforded capital defendants apply equally to postconviction competency determinations).
138. 109 S. Ct. 2765 (1989).
1990]
MURRAY
IV.
v GIARRATANO
783
A.
Lower Court Opinions
The habeas petitioners in Giarratanochallenged the State of Virginia's denial of appointed counsel to help indigent death-row inmates prepare petitions for state postconviction relief.1 39 The
United States District Court for the Eastern District of Virginia ruled
that the mere providing of law libraries did not meet the state's constitutional obligation to provide prisoners meaningful access to the
courts.
40
The district court noted three "special considerations"
that required inmates be provided more effective assistance. 14 '
First, death-row inmates may have as little as thirty days to prepare a
petition, which is an inadequate amount of time for an untrained
individual to complete the large amount of legal work necessary.142
Second, the bifurcated capital trial process, which separates the determination of guilt from the imposition of sentence, presents issues
of substantial complexity that are difficult to research. 143 Third, the
court considered an inmate facing death psychologically incapable
of performing the work necessary to prepare a petition.144
The district court found that the interaction of these factors with
Virginia's procedures effectively denied meaningful access. 145 Virginia provided trained legal assistance to death-row inmates but that
failed to assist adequately the inmates in the preparation and filing
of meaningful legal papers.146 The court noted that the state's institutional attorneys were little more than "talking lawbooks," constrained by both their advisory role and the number of inmates they
had to assist. 147 Furthermore, Virginia courts possessed discretionary power to appoint individual counsel only after an inmate filed a
139. Giarratano v. Murray, 668 F. Supp. 511, 512 (E.D. Va. 1986), aft'd, 847 F.2d 1118
(4th Cir. 1988) (en banc), rev'd, 109 S. Ct. 2765 (1989). Giarratano, convicted of two counts
of murder, filed the original suit, which was later certified as a class action. Id. The class was
defined as:
all persons, now and in the future, sentenced to death in Virginia, whose sentences
have been or are subsequently affirmed by the Virginia Supreme Court and who
either (1) cannot afford to retain and do not have attorneys to represent them in
connection with their post-conviction proceedings, or (2) could not afford to retain
and did not have attorneys to represent them in connection with a particular postconviction proceeding.
Id.
140. Id. at 513.
141. Id.
142. Id.
143. Id.
144. Id.
145. Id. at 514-15.
146. Id. at 514.
147. See id. (reasoning that scope of assistance provided was too limited because attorneys
did not perform factual inquiries, sign pleadings, or make court appearances). Seven part-
784
THE AMERICAN UNIVERSITY LAW REVIEW [Vol.
39:765
non-frivolous petition. 148 The court found this timing "fatally defective" because the preparation of the petition is critical in developing the inmate's claims.14 9 Finally, Virginia provided that any
claims not raised in the- first petition could not be subsequently
raised;' 50 therefore, the court considered appointment of counsel
after the filing of the petition to be ineffective.' 5 ' The district court
concluded that only the continuous service of an attorney could satisfy "meaningful access" because the pre-petition institutional attorney assistance was too limited and the post-petition appointment
52
was untimely.'
Ultimately, an en banc majority of the United States Court of Appeals for the Fourth Circuit upheld the judgment of the lower
court.' 53 Between the district court's decision and the appeal, the
54
Supreme Court announced its decision in Pennsylvania v. Finley.'
Although Virginia relied on that decision in the appeal, 155 the
Fourth Circuit based its affirmance of Giarratanoon Bound's meaningful access analysis.' 5 6
The Fourth Circuit distinguished Finley on several grounds. First,
the Court noted that Finley addressed the right to counsel rather
than meaningful access.'5 7 Second, that decision did not consider
whether Bounds required more than law libraries.' 58 Third, the
Fourth Circuit believed that the context of Giarratano-adeath penalty case-mandated a different result than the one Finley dictated.' 59 The appellate court noted that both society and death-row
inmates have compelling interests in the constitutional imposition
time attorneys served 2000 client-inmates. Giarratano v. Murray, 847 F.2d 1118, 1120 (4th
Cir. 1988).
148. Id. at 514-15 (citing Cooper v. Haas, 210 Va. 279, 170 S.E.2d 5 (1969) and Darnell v.
Peyton, 208 Va. 675, 160 S.E.2d 749 (1968)); see VA. CODE ANN. § 14.1-183 (1950) (providing
that Virginia courts may appoint counsel to indigent persons) (emphasis added).
149. Giarratano,668 F. Supp. at 515.
150. Id. at 515 n.2. Virginia law provides that when the facts of a claim are known to
petitioner at the time a petition is filed, that claim must be made or it will be forfeited. VA.
CODE ANN. § 8.01-654(B)(2) (1950). Because any such claim would be barred under state
procedural law, it would be similarly barred from federal proceedings. See Whitley v. Bair,
802 F.2d 1487, 1499-1502 (4th Cir. 1986) (applying procedural default doctrine to subsequent federal claims after exhausting state appeals).
151. Giarratano, 668 F. Supp. at 515.
152. Id. at 514, 515.
153. Giarratano v. Murray, 847 F.2d 1118 (4th Cir. 1988) (en banc), rev'd, 109 S. Ct. 2765
(1989). In the first circuit court decision, a divided panel ruled for the state. Giarratano v.
Murray, 836 F.2d 1421 (4th Cir. 1988).
154. 481 U.S. 551 (1987); see supra text accompanying notes 96-105 (discussing Finley).
155. See Giarratano,847 F.2d at 1121 (arguing that Finley supports proposition that no
constitutional right to counsel exists in state postconviction proceedings).
156. Id.
157. Id. at 1122.
158. Id.
159. Id.
1990]
785
of the death sentence. 160 Thus, when law libraries were inadequate
to ensure meaningful access to the courts that reviewed capital
cases, Bounds required that the state appoint counsel to represent
16 1
death-row inmates.
B.
The Supreme Court's Decision
The Supreme Court reversed, ruling that the Fourth Circuit's
holding was inconsistent with its decision in Finley, that Finley applied to both capital and non-capital cases, and that the lower court
had misread Bounds.' 62 A plurality of the Court held that, under Finley, neither due process nor meaningful access requires the state to
appoint counsel for indigent prisoners seeking postconviction relief.' 63 Although the sixth and fourteenth amendments mandate the
appointment of counsel at trial and appeal, this right does not extend to a collateral appeal because the Constitution does not require states to provide postconviction proceedings. 164
The Court rejected the argument that Finley was inapposite because it was not a capital case.' 65 The Court found that although
the Constitution places special constraints on the procedures used
in capital cases, they are limited to the trial stage and are adequate
to ensure the reliability of the imposition of the death penalty. 166
The Court noted that it had refused to require a different standard
of review at habeas corpus, 167 and, therefore, Finley applied to both
capital and non-capital cases. 168
The Court also rejected the proposition that Bounds governed the
case, finding no tension between that decision and Finley.' 6 9
Whether Bounds rested on due process or equal protection, the right
70
of access rested "on a constitutional theory considered in Finley."'
160. Id.
161. See id. at 1121-22 (holding that existing procedures failed to provide access to courts
required by Bounds so that court appointed attorney was necessary).
162. Murray v. Giarratano, 109 S. Ct. 2765, 2767 (1989) (plurality opinion). ChiefJustice
Rehnquist wrote the opinion in which Justices White, O'Connor, and Scalia joined. Id.
163. Id. at 2770-71.
164. Id. at 2769-70.
165. Id. at 2770.
166. Id. at 2770-71.
167. Id. at 2770. The Court based its reasoning on previous cases. See Smith v. Murray,
477 U.S. 527, 538 (1986) (rejecting suggestions that procedural default principles differ according to penalties); Ford v. Wainwright, 477 U.S. 399, 425, 429 (1986) (Powell &
O'Connor, JJ. concurring) (recognizing that heightened procedural requirements may not apply at postconviction proceedings); Barefoot v. Estelle, 463 U.S. 880, 887 (1983) (stating that
direct review was primary review of death penalty).
168. Giarratano,109 S.Ct. at 2770.
169. Id. at 2772.
170. Id. at 2771. Presumably, the opinion was referring to Finley's ruling that neither due
process nor equal protection is relevant in collateral hearings because the hearings are made
786
THE AMERICAN UNIVERSrrY LAW REVIEW
[Vol. 39:765
The Court also expressed concern that using Bounds in the context
of specific "factual findings"' 17 1 to overrule Finley would permit a different constitutional rule to apply where a district judge reached different conclusions of fact. 1 7 2 One judicial district might conclude
that counsel is required, while another, based on its assessment of
available legal assistance and the capability of inmates to pursue
their claims, might not draw the same conclusion.' 75 The Court
concluded that the holding in Finley necessarily imposed limits on
Bounds. 1 74
Justice Kennedy, joined by Justice O'Connor, concurred in the
judgment. 7 5 Kennedy agreed with the dissent that postconviction
proceedings are of central significance to the review process in
death penalty cases.' 7 6 The concurrence also agreed with the dissent that the complexity of habeas corpus jurisprudence justified the
assistance of counsel. 7 7 Nevertheless, the concurrence noted that
"no prisoner on death row in Virginia has been unable to obtain
178 Most
counsel to represent him in postconviction proceedings."
importantly, Justice Kennedy stated that the requirement of meaningful access can be satisfied in various ways and the decision was
179
ultimately a legislative matter.
The dissent argued that under the fourteenth amendment, the
state was obliged to provide indigent defendants with an adequate
opportunity to present their claims.1 80 The dissent recognized that
available through legislative action. Pennsylvania v. Finley, 481 U.S. 551, 556 (1987). The
Court noted that it would be a "strange jurisprudence" to permit an extension of Bounds to
partially overrule a subsequently decided case such as Finley. Giarratano, 109 S. Ct. at 2771.
171. Giarratano, 109 S. Ct. at 2771. By using quotations around "factual," Justice Rehnquist casts some doubt as to whether the processes being judged can ever be evaluated by
objective criteria. Id. Too much room for subjectivity would render the "clearly erroneous"
standard, under which "factual findings" are reviewed, virtually useless. Id.
172. Id.
173. Id. This issue provoked close questioning in the oral argument. See Official Tran-
script at 29-31, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-411).
174. Giarratano, 109 S. Ct. at 2772.
175. Id. at 2772-73 (Kennedy, J., concurring). Justice O'Connor, who joined in both the
plurality and in Justice Kennedy's concurrence, also filed an individual concurrence noting
that she did not view Justice Kennedy's concurrence as "inconsistent with the principles"
expressed by the plurality. Id. at 2772 (O'Connor, J., concurring).
176. Id. at 2772 (Kennedy, J., concurring).
177. Id. (Kennedy, J., concurring).
178. Id. at 2773 (Kennedy, J., concurring).
179. See id. (Kennedy,J., concurring). Although the Court in Bounds noted that there were
other ways to satisfy meaningful access, its suggestions centered on legal assistance. See
Bounds v. Smith, 430 U.S. 817, 830-32 (1977).
180. Id. at 2774-75 (Stevens, J., dissenting) (citing Ross v. Moffitt, 417 U.S. 600, 612
(1974); see supra notes 84-90 and accompanying text (discussing Ross). Justices Brennan, Marshall, and Blackmun joined in the dissent. Id. at 2773 (Stevens, J., dissenting).
1990]
MURRAY V. GIARRTANO
787
Powell,18 1 Griffin,18 2
Douglas,18 3 and Bounds184 were fourteenth
amendment cases in which the circumstances of the case defined the
scope of the fourteenth amendment protection.' 8 5 The dissent argued that Ross and Finley were merely other examples of the application of due process to particular situations, and that the Court
should apply a similar fourteenth amendment analysis in
86
Giarratano.1
The dissent presented three arguments to distinguish Finley and
to demonstrate the fundamental unfairness of requiring an indigent
death row inmate to initiate postconviction review without counsel.18 7 First, unlike the respondent in Finley, the petitioners in Giarratano had been sentenced to death.' 8 The unique nature of the
death penalty necessitates "heightened" due process protection
during all phases of the trial and increases the importance of appellate review.18 9 The dissent found that the sixty to seventy percent
success rate of capital defendants at habeas corpus demonstrated
the need to extend meaningful review beyond the appellate stage.190
Second, Virginia procedural rules barred certain claims and issues
until postconviction proceedings, making these proceedings the key
to meaningful appellate review of these issues. 19 1 Third, the dissent
adopted the lower court's findings that capital and noncapital post92
conviction cases are different.
Finally, the dissent evaluated the governmental interests at stake
181. Powell v. Alabama, 287 U.S. 45 (1932); see supra notes 45-51 and accompanying text
(discussing Powell).
182. Griffin v. Illinois, 351 U.S. 12 (1956); see supra notes 64-71 and accompanying text
(discussing Griffin).
183. Douglas v. California, 372 U.S. 353 (1963); see supra notes 72-77 and accompanying
text (discussing Douglas).
184. Bounds v. Smith, 430 U.S. 817 (1977); seesupra notes 91-100 and accompanying text
(discussing Bounds).
185. Giarratano, 109 S. Ct. at 2775 (Stevens, J., dissenting).
186. Id. at 2775-76 (Stevens, J., dissenting).
188. Id. at 2776 (Stevens, J., dissenting).
189. Id. (Stevens, J., dissenting).
191. Id. at 2778-80 (Stevens, J., dissenting). For instance, under Virginia law, claims of
ineffective trial or appellate counsel cannot be raised until the postconviction stage. Id. at
2778 (citing Frye v. Commonwealth, 345 S.E.2d 267 (1986)). In addition, some irregularities
may not become apparent until appellate review is complete. Id. at 2778; see Amadeo v. Zant,
486 U.S. 214 (1988) (finding prosecutorial misconduct); Johnson v. Mississippi, 108 S. Ct.
1981 (1988) (discovering prior conviction used to enhance sentence invalid); Exparte Adams,
768 S.W.2d 281 (Tex. Crim. App. 1989) (uncovering new evidence); Curry v. Zant, 248 Ga.
527, 371 S.E.2d 647 (1988) (using various factors to mitigate sentence).
192. Giarratano, 109 S. Ct. at 2780 (Stevens, J., dissenting). The dissent recognized that
the plight of a capital prisoner is substantially different from that of other prisoners. Id. at
2782 (Stevens,J., dissenting). For instance, death-row inmates have a limited time in which to
file petitions. Id. (Stevens, J., dissenting). In addition, capital litigation is extraordinarily
complex. Id. (Stevens,J., dissenting). Finally, the psychological strain of preparing for death
788
[Vol. 39:765
and concluded that they did not justify an infringement of fourteenth amendment rights.193 Virginia already appointed counsel for
those inmates who filed nonfrivolous claims, and the additional cost
of providing counsel to draft initial petitions for review would be
minimal.194 Moreover, the professional preparation of first petitions was likely to reduce successive petitions so that the state might
ultimately benefit. 195 The dissent concluded that "simple fairness"
required the state to provide counsel for indigent death-row inmates to assure them an adequate opportunity to present their
claims. 196
V.
ANALYSIS OF GIARRATANO
A.
When Is Due Process Due?
In Giarratano,a plurality of the Supreme Court relied on the reasoning articulated in Ross and Finley and declined to find that the
fourteenth amendment mandates a right to counsel at state postconviction proceedings for death-row inmates.' 97 In so doing, the plurality severely curtailed both the fundamental right to counsel and
the right of meaningful access to the courts. 198 The Court, however, erred in its analysis because the full protections embodied in
the fourteenth amendment should extend to situations such as those
presented in Giarratano. Under either the due process or equal protection reasoning of Douglas,19 9 or by the application of a more recently formulated balancing test,20 0 the Court should have found
may render inmates incapable of performing the mental functions necessary to pursue postconviction claims. Id. (Stevens, J., dissenting).
194. Id. at 2781 (StevensJ., dissenting) (noting there were only 32 death row inmates for
whom this service would be necessary).
195. Id. (Stevens, J., dissenting).
197. Id. at 2767. But see Douglas v. California, 372 U.S. 353, 358 (1963) (holding that
fourteenth amendment requires that indigent individuals be provided counsel on direct appeal because both indigent and nonindigent defendants must be given meaningful appeal,
which requires assistance of counsel).
198. See supra notes 45-104 and accompanying text (tracing development of sixth and
fourteenth amendment jurisprudence).
199. See supra notes 72-77 and accompanying text (discussing Douglas).
200. See Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (formulating and evaluating factors to be balanced in procedural due process and concluding that evidentiary hearing to
challenge withdrawal of disability benefit was not required). The Court has used the Matthews
balancing test to conclude that a prisoner has a right to the services of a psychiatrist at trial to
establish an insanity defense. See Ake v. Oklahoma, 470 U.S. 68, 86-87 (1985). In Ahe, the
Court evaluated three factors: (1) the private interest that is affected by the state's actions; (2)
the state's interest that is affected if the safeguard is provided; and (3) the probable value of
the safeguard and the risk of an erroneous deprivation of the protected interest if it is not
provided. Id. at 77.
For an application of the Matthews balancing test to Giarratano,see Millemann, Capital Post-
1990]
789
that the fourteenth amendment mandates that the state provide indigent death row inmates with counsel to pursue state postconviction remedies. Instead, the rule that emerges from Ross, Finley, and
Giarratanois that neither due process nor equal protection is triggered unless the state is constitutionally required to provide the judicial procedure. 20 ' The plurality relied on Finley to determine that
inmates seeking state postconviction remedies should not receive
the same fourteenth amendment protection as defendants on direct
appeal. 20 2 The decision in Finley, however, is subject to criticism,
particularly when it is applied to the facts Giarratanopresents.
The Court in Finley extended the holding in Ross and ruled that
counsel was not required at discretionary review.2 03 In Finley, the
Conviction Petitioners'Right to Counsel" IntegratingAccess to Court Doctrine and Due Process Principles,
48 MD. L. REV. 455, 477-505 (1989). The strength of Millemann's analysis is the thorough
identification of the interests of both the inmates and the state. Millemann identified three
private interests: (1) an interest in a fair capital trial; (2) an interest in the postconviction
enforcement device; and (3) an ultimate interest in remaining alive. Id. at 478-85. The state's
interests include a "disinterest," because the interest of the community in maintaining the
integrity of its judicial process favored the appointment of counsel. Id. at 500-05. Moreover,
the risk of error if counsel is not provided and the inmate has to proceed pro se is high because
of the substantial investigation and preparation required in postconviction cases, the complexity of postconviction law, including substantive and procedural death penalty law and
ineffective assistance of counsel claims, and the impossibility of learning the law necessary to
pursue postconviction claims while awaiting death. Id. at 485-500. When all of these considerations are taken into account, the conclusion is inescapable that the fourteenth amendment
due process clause mandates the appointment of counsel. Id. at 505. The dissent, court of
appeals, and district court reached the same conclusion with a less complete analysis that
focused primarily on the factors that increased the risk of error because of the complexity of
the law, the time constraints facing a death-row inmate, and the impossibility of marshalling a
pro se effort while preparing for death. See Giarratano, 109 S. Ct. at 2776-81 (Stevens, J., dissenting); Giarratano,847 F.2d at 1120-21; Giarratano,668 F. Supp. at 513.
201. This rule makes the application of due process dependent on the source or authority
of the procedure. The contrary view is that it is the existence of the procedure which triggers
due process. An "inner morality of law" requires ajudicial system to utilize the procedures it
holds out to citizens-whatever their source. See Mello, supra note 62, at 1099 (citing L.
FULLER, THE MORALrrY OF LAW (1934)).
The Court has applied due process in accord with the "inner morality" view. See Evitts v.
Lucey, 469 U.S. 387, 395-96 (1985) (holding that when state chooses to act in field where its
action has significant discretionary elements, it must nonetheless act in accord with dictates of
due process clause); Bounds v. Smith, 430 U.S. 817, 825 (1977) (holding that cost of upholding constitutional right cannot justify its denial); Wolff v. McDonnell, 418 U.S. 539, 579
(1974) (ruling that no person can be denied opportunity to present allegations concerning
violation of fundamental constitutional rights to judiciary); Johnson v. Avery, 393 U.S. 483,
486 (1969) (holding that rights granted must be more than mere formality).
202. Giarratano, 109 S. Ct. at 2770-71.
203. See Ross v. Moffitt, 417 U.S. 600, 612 (1974) (concluding that absence of counsel at
discretionary review did not preclude adequate hearing because court had trial transcripts,
briefs, and appellate court's opinion, thereby making any handicap to appellant acceptably
minimal).
Commentators have criticized both the methodology and the holding of Ross because it
misrepresented Douglas. See Evitts v. Lucey, 469 U.S. 387, 405 (1985) (stating that "[iun cases
like Griffin and Douglas, due process concerns were involved because the States involved had
set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal"); see also Kamisar, Poverty, Equality
and CriminalProcedure, National College of District Attorneys, CONSTruTiONAL LAW DESKBOOK
790
[Vol. 39:765
Court equated two different types of judicial action, discretionary
review and postconviction proceedings.2 0 4 Although both of these
judicial proceedings emanate from state legislative action rather
than from constitutional mandate, the grounds for the proceedings
are different. 20 5 The three grounds for discretionary review are:
first, that the issue presented is of significant public interest; second,
the issue is ofjurisdictional importance; or third, that the issue is in
conflict with controlling precedent.2 06 The basis of a postconviction
cause of action is that the state violated the Constitution, thereby
depriving the litigant of a full and fair hearing.2 0 7 The applicant for
discretionary review need only inform the court that the case may
have possible relevance to the development of the law, whereas the
appellant in a postconviction proceeding must claim specific constitutional violations. 20 8 Finley's inappropriate extension of Ross to
postconviction was a result of the Court's failure to address the underlying differences between the two proceedings.
The plurality maintained that Finley disposed of the application of
Bounds' meaningful-access standard to postconviction cases. 20 9 This
reasoning, however, is not persuasive because Finley did not explicitly distinguish and indeed did not refer to Boun&. More significantly, Finley did not fully consider the basis of meaningful access
and whether it is an independent, fundamental right or a derivative,
101-08 (1977) (positing that Ross leads to conclusion that when due process does not impose
duty on state to provide counsel, neither will equal protection); L. TRIBE, AMERICAN CONSTITUTONAL LAW, § 16-51, at 1647 (2d ed. 1988) (criticizing Ross because it "disengaged Griffin
from Douglas, deftly rewove the Grffin transcript and filing fee decisions together as minimal
access cases rather than equal protection cases, and neatly severed Douglas from this newly
created body of law"); Israel, Criminal Procedure, the Burger Court and the Legacy of the Warren
Court, 75 MxcH. L. REV. 1319, 1335 n.69 (1977) (concluding that Ross rested on equal protection premise that "absolute equality" is not required); Mello, supra note 62, at 1094-95 (noting that Court based its decision on misinterpretation of Douglas, which allowed it to overlook
powerful equal protection analysis, and characterizing Ross as "piece of subterfuge" which
"glide[d] lightly past half the rationale of Douglas").
204. Pennsylvania v. Finley, 481 U.S. 551, 556 (1987); see I. Robbins, supra note 27, at 87
(raising questions about validity of equating two types of judicial review).
205. See supra note 41 and accompanying text (identifying different purposes embodied in
different proceedings).
206. See Ross, 417 U.S. at 613-14 (citing grounds for discretionary review in North Carolina); see also Fay v. Noia, 372 U.S. 391, 436 (1963) (characterizing writ of certiorari as not
providing appellate channel comparable in any sense to habeas corpus); Brennan, State Court
Decisions and the Supreme Court, 31 PA. B.A.Q. 393, 400 (1960) (stating that petition for certiorari should identify substantial federal questions decided by state court contrary to federal
precedents and whether state decision rests on independent state ground); Note, supra note
56, at 77 (characterizing certiorari as highly specialized component of appellate review).
207. See supra text accompanying notes 25-33 (explaining relationship between state postconviction and federal habeas corpus proceedings).
208. Bounds v. Smith, 430 U.S. 817, 827-28 (1977) (concluding that attorney is more
important at postconviction than at discretionary review because of need for legal research
into unlitigated issues and significance of making meaningful initial presentation to court).
209. Giarratano, 109 S. Ct. at 2771-72.
1990]
791
due process right.2 1 0 Giarratanoalso failed to address the logic and
constitutional theory of Bounds; indeed, the Court's reason for dismissing Bounds' analysis is unclear.
Giarratanorelies, as did Ross and Finley, on the distinction between
the trial, direct appeal, and collateral appeal stages of the criminal
process. 2 1 ' In the words of ChiefJustice Rehnquist, at the appellate
stage, "[t]he defendant needs an attorney not as a shield to protect
him against being 'haled into court' by the State and stripped of his
presumption of innocence, but rather as a sword to upset the prior
determination of guilt. '2 1 2 This metaphor, while superficially viable, is incomplete because an attorney is both a sword and a shield,
regardless of which litigant an attorney represents. 2 13 When an inmate challenges the constitutionality of a particular trial, sentence,
or appeal, the state could be characterized as the aggressor, armed
with a sword in the form of the adverse decisions of the lower
courts. 2 1 4 In this context, the petitioner needs an attorney to act as
a shield. Thus, the posture of the litigants-plaintiff or defendant,
challenger or challenged-should not determine whether procedural due process is operative. 2 15 Such protection exists because of
the adversarial nature of the process which casts all participants as
2 16
both aggressors and defenders.
210. A persuasive argument that meaningful access is an independently fundamental right
posits that it is a variant of due process. See Millemann, supra note 200, at 473. Due process
rights and meaningful access rights are equivalent because they are both means by which
individuals vindicate underlying rights. Bounds v. Smith, 430 U.S. 817, 828 (1979). The
right to enforce a right is the constitutionally protected interest that triggers due process.
Millemann, supra note 200, at 473. The "interest in the process," rather than in any underlying grievance, is the basis of due process. Note, A Prisoner's ConstitutionalRight to Attorney Assistance, 83 COLUM. L. REv. 1279, 1287 (1983). The specific language of Supreme Court case law
further supports this argument. See Bounds, 430 U.S. at 828 (holding "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law");Johnson v. Avery, 393 U.S. 483, 485
(1969) (ruling that "it is fundamental that access of prisoners to the courts for the purpose of
presenting their complaints may not be denied or obstructed.").
211. Giarratano, 109 S.Ct. at 2769.
212. Id.; see also Pennsylvania v. Finley, 481 S.Ct. 551, 555-56 (1987); Ross v. Moffitt, 417
U.S. 600, 610-11 (1974).
213. In the application of hyperbole, one might consider Justice Cardozo's cautionary
words on the use of metaphors in law: "starting as a device to liberate thought, they end often
by enslaving it." Berkey v. Third Ave. Ry., 244 N.Y. 84, 87, 155 N.E. 58, 61 (1926).
214. See Note, supra note 56, at 80 (arguing that capital defendant needs counsel as "second shield" for protection against death penalty and to assure access to appeal process).
215. See Millemann, supra note 200, at 474 (stating that posture of habeas corpus action
determines burden of proof, shifting it to petitioner because conviction's affirmance creates
presumption that denial of liberty is valid, but noting that presumption is rebuttable).
216. See Penson v. Ohio, 109 S. Ct. 346, 352 (1988) (stressing that need for forceful advocacy does not end at appellate stage because it requires careful advocacy to ensure that rights
are not waived nor legal and factual arguments inadvertently passed over); Bounds v. Smith,
430 U.S. 817, 826 (1977) (noting that "even the most dedicated trial judges are bound to
overlook meritorious cases without the benefit of an adversary presentation"); Herring v. New
792
The Court's refusal in Giarratanoto extend full due process pro-
tection curtails the presentation of claims that depend on its balancing of interests analysis. 217 Without access to the mechanism of
enforcement, in this case the postconviction proceedings, the right
to a constitutional trial is meaningless. Moreover, because federal
habeas is also a statutory right, which Congress has no obligation to
provide, the question arises as to whether the Court will limit the
due process protections provided to those claims as well. 2 18
B.
1.
Why Death Is Diferent
Factors addressed in Giarratano
The habeas petitioners in Giarratano argued that the Supreme
Court should distinguish Finley because Finley was not a capital
case. 2 19 Nevertheless, the Court refused to find a distinction,
holding that the death sentence did not require a different
standard of review. 220
The Court relied on Ford v. Wain-
York, 422 U.S. 853, 862 (1975) (commenting that premise of our advocacy system is that
partisan advocacy on both sides will promote objective to punish guilty and let innocent go
free); United States v. Ash, 413 U.S. 300, 309 (1973) (observing that criminal defendant's
liberty and perhaps life depend on ability to confront intricacies of law and advocacy of public
prosecutors); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (observing that "reason and
reflection require us to recognize ... our adversary system"); see also Mello, supra note 62, at
1104 (stressing that trial, direct appeal, state postconviction, and federal habeas corpus are all
adversarial and thatposturalchanges are merely "conceits of legalism") (emphasis in original);
Millemann, supra note 200, at 464-65 (emphasizing that state is not neutral actor in criminal
proceeding but is creator of inmate's standing and is powerful opposing litigant).
217. The irony of this decision should not go unnoticed. The Court has elected to curtail
the means to achieve postconviction relief, a mechanism designed to ensure due process of
law. See Fay v. Noia, 372 U.S. 391, 402 (1963) (noting that "habeas corpus in the federal
courts provides a mode for the redress of denials of due process of law"); Johnson v. Zerbst,
304 U.S. 458, 467 (1938) (holding that if courts fail to protect rights by habeas corpus, no
legal remedy is available to grant relief in denial of counsel claim); see also Millemann, supra
note 200, at 509 (characterizing postconviction proceedings as enforcement device for right
to effective assistance of counsel).
218. The question of whether habeas corpus is mandated by the Constitution or statute is
by no means settled. The Constitution provides that "[t]he Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public
safety may require it." U.S. CoNsT. art. I, § 9; see Fay v. Noia, 372 U.S. 391, 403 (1963) (concluding that 1867 Act followed common-law tradition encompassing all constitutional claims
presented by state prisoners);Jones v. Cunningham, 371 U.S. 236, 238 (1963) (taking notice
of constitutional command that writ of habeas corpus be made available); Peller, supra note
19, at 583 (extending habeas corpus protection to all aspects of Constitution under Brown v.
Allen rule). But see Bator, supra note 19, at 445 (limiting habeas corpus to attacks on state court
jurisdiction); Judicial Conference of the United States, AD Hoc COMM1T-EE ON FEDERAL
HABEAS CORPUS IN CAPITAL CASES, Aug. 23, 1989, at 4 n.2 (Lewis F. Powell, Jr., Chairman)
[hereinafter Powell Report] (asserting that Constitution does not mandate federal habeas
corpus review of state court decisions and that right has evolved from statute).
220. Id., 109 S. Ct. at 2770 (conceding that death sentences required special treatment at
trial and sentencing, but limiting safeguards to those stages). But see Carey v. Garrison, 403 F.
Supp. 395, 397 (W.D.N.C. 1975) (distinguishing Ross because it was noncapital case, and stat-
1990]
MURRAY v GIARRATANO
wright 22 1 as evidence that a uniform standard of review existed for
both capital and noncapital cases at habeas corpus. 2 22 The Court
noted that in Ford, five Justices agreed that procedures to ascertain
sanity before execution are not subject to the stringent standards
demanded in other aspects of capital proceedings. 223 This observation, however, masks the fundamental point that seven Justices
agreed that due process requires that the prisoner have a full and
fair hearing. 2 24 In addition, the disagreement over the scope of the
hearing was based on an application of the due process balancing
analysis-an analysis Giarratanodeclined to undertake. 22 5 Most significantly, Ford did not address the issue that Giarratanoraised: Giarratano challenged the circumscribed access to the postconviction
proceeding, not the standard of review that should be applied within
that proceeding. 226 Ford does not corroborate the plurality's holding that equivalent standards of review for capital and noncapital
cases in habeas corpus are the norm. 227
The plurality opinion ignored the substantial record that supports
the claim that federal courts have treated death differently at habeas
corpus. 2 28 For example, the dissent noted that capital petitioners
ing that "where a man's life is at stake, I am not prepared to concede that the law in [Ross], the
case of a small time forger, should apply").
221. 477 U.S. 399 (1986).
222. Giarratano,109 S. Ct. at 2770; see Ford v. Wainwright, 477 U.S. 399, 414 (1986) (recognizing "heightened concerns for fairness and accuracy that has characterized our review of
the process requisite to the taking of a human life" is not abandoned until "the final fact
antecedent to execution has been found"); see also Berger, supra note 126, at 131 (citing Ford
as example of Court's commitment to high level scrutiny in capital cases); Millemann, supra
note 200, at 484 (concluding that under Ford, "death is different" principle commands enhanced constitutional protection from trial and sentencing to moment of execution).
224. Ford,477 U.S. at 430 (O'ConnorJ, concurring in part, dissenting in part). The Ford
concurrence, on which Giarratanorelies, implies that the conclusion reached by the executive
hearing was not entitled to a presumption of correctness. Id. (O'Connor, J., concurring in
part, dissenting in part). That presumption attached only to the findings of courts, and required a full and fair hearing. Id. at 424 (Powell, J., concurring). The executive hearing was
not a court and the hearing violated due process because the inmate was not allowed to offer
evidence. Id. (Powell, J., concurring). Justice O'Connor wrote that due process "at the very
least" requires that the person who made the decision consider the prisoner's evidence. Id. at
430 (O'Connor, J., concurring in part, dissenting in part).
225. Id. at 425 (Powell, J., concurring), 430-31 (O'Connor, J., concurring in part, dissenting in part) (asserting that question was not whether there should be execution, but when execution could occur because state now had greater substantial interest than when issue was
constitutional legality of trial or sentence) (emphasis in original). The majority agreed that
the prisoner should have access to a hearing in which the prisoner was represented by counsel
and could present evidence. Id. at 414.
227. Id. at 2770.
228. Seesupra notes 127-36 and accompanying text (outlining history of Court's treatment
of death); Radin, Cruel Punishmentand Respectfor Persons: SuperiorDue ProcessforDeath, 53 S. CAL.
L. REv. 1143, 1150 (1980) (concluding that risk of error ofjudgment of inmate because of
mental adjustments necessary when facing death penalty justifies special consideration); Resnik, Tiers, 57 S. CAL. L. REv. 837, 934 (1984) (observing that this country has long history of
794
[Vol. 39:765
are successful in sixty to seventy percent of their cases, in comparison to the less than one to seven percent success rate of noncapital
petitioners. 2 29 This disparity demonstrates that habeas corpus
courts do not apply the same standards to capital and noncapital
cases. 2 30 The Court's claim that there is no difference in the degree
of scrutiny employed in capital cases is not supported by this
23
evidence. '
Indeed, petitioners' success in capital cases also demonstrates
that direct review is an inadequate monitor of the constitutional
safeguards surrounding the death penalty at trial and sentencing.
As the dissent noted, given the substantial success rate of capital
cases at habeas, some doubt attaches to the efficacy of the direct
appeal. 23 2 Moreover, even if the standards of review within habeas
are equivalent in capital and noncapital cases, one cannot necessarily conclude that the standard for entry into the state postconviction
process should be the same. In fact, the logic, history, and the law
of death penalty jurisprudence supports a contrary position. 23 3 For
instance, state postconviction courts now share the burden of heardifferentiating death penalty cases and of providing extra process to protect sentenced
prisoner).
229. Giarratano, 109 S. Ct. at 2778 (Stevens, J, dissenting).
The figures may be skewed, however, because of the number of invalidated death penalty
statutes in the post-Furman era. See Coleman v. McCormick, 874 F.2d 1280, 1298 (9th Cir.
1989) (en banc) (TrottJ., concurring) (commenting that invalidation of death penalty in case
is due to state's adjustment to new rules for administration of capital punishment to meet
standards of Furman). Nevertheless, one commentator did discount those wholesale reversals
and still found a sixty percent success rate. Greenberg, supra note 111, at 918. Former Chief
Judge of the Eleventh CircuitJohn Godbold, reported that the Eleventh Circuit granted relief
in one-third to one-half of death penalty inmates between 1981 and 1987. Godbold, Pro Bono
Representation of Death Sentenced Inmates, 42 REC. A.B. Crrv N.Y. 859, 873 (1987); Mikva &
Godbold, You Don't Have to be a Bleeding Heart, 14 HUMAN RIxrrs 22, 25 (1987). Earlier studies
reported a success rate in capital cases at federal habeas corpus of sixty to seventy-five percent
as of 1982, seventy percent as of 1983, and sixty percent as of 1986; from 1976-1983, the
success rate of appeals in capital cases was 73.27o, and in noncapital cases it was 6,5%0. Mello,
supra note 32, at 521.
230. Coleman, 874 F.2d at 1289 (Reinhardt, J., concurring) (addressing possibility that
high success rate is result of heightened sensitivity of federal courts to death-row inmates
rather than general failure of state courts' adjudication of constitutional issues, and concluding that, in either case, federal judiciary is following established constitutional doctrine by
such close monitoring).
231. See Barefoot v. Estelle, 463 U.S. 880, 915 (1982) (Marshall,J., dissenting) (using similar statistics as evidence that appeals by death-row inmates are not frivolous).
232. Giarratano, 109 S. Ct. at 2778 (Stevens, J., dissenting) (observing success rate of
habeas petitioners demonstrates significant function of postconviction process); see also Cole.
man, 874 F.2d at 1295 (Reinhardt, J., concurring) (stating that "the high rate of successful
habeas appeals" is indicative of disregard by state judges of "fundamental principles of constitutional law"); Burt, Disorderin the Court: The Death Penalty and the Constitution, 85 MicH. L.
REv. 1741, 1793 (1987) (noting that it is difficult to avoid suspicion that criminal justice system impeaches its own integrity by producing reversible errors in between one-half and threequarters of its [death penalty] cases).
233. See supra notes 113-24 and accompanying text (examining Supreme Court's postFurmanjurisprudence).
1990]
795
ing claims of constitutional error in death penalty cases with the federal judiciary. 23 4 This function is significant and supports the
notion that the Supreme Court should facilitate access to the
procedure.
Further, an inquiry into the operation of a particular state's postconviction proceeding shows that the proceeding may be a hybrid
that incorporates elements of both direct appeal and habeas
corpus. 23 5 The dissent reasoned that when state law requires that
certain claims be raised only at the postconviction stage, that procedure necessarily functions as the direct appeal. 2 36 For example,
under Virginia law, claims usually raised at direct appeal, such as
ineffective assistance of counsel, cannot be raised until postconvic-
tion. 23 7 Virginia also requires that all claims must be presented in
the state postconviction petition, and, because federal courts observe state procedural rules, the system may preclude the possibility
of raising a pertinent claim at federal habeas corpus.2 3 8 In these
circumstances, postconviction proceedings are the "key to meaning-
ful review of capital cases." 239 Therefore, it follows that because
Virginia chose to make its collateral proceeding a substitute for direct appeal, it incurred the constitutional obligation to provide
240
counsel.
State postconviction review also resembles federal habeas corpus
proceedings in that claims of constitutional error are heard. In fact,
entry into federal habeas corpus is predicated on compliance with
2 41
procedural rules such as exhaustion and procedural default.
234. See supra notes 25-31 and accompanying text (outlining history of habeas corpus).
235. See infra notes 236-40 and accompanying text (analyzing Virginia's proceedings).
236. Giarratano, 109 S. Ct. at 2778-79 (Stevens, J., dissenting).
237. See Frye v. Commonwealth, 231 Va. 370, 399, 345 S.E.2d 267, 287 (1986).
238. Giarratano v. Murray, 847 F.2d 1118, 1118 n.4 (4th Cir. 1988) (en banc) (observing
that in Virginia "all claims, the facts of which are known at the time of filing, must be included
in that petition as they may not be raised successfully in a subsequent filing and those claims
also cannot be considered in federal court because federal courts generally may not consider
claims barred by Virginia procedural rules."), rev'd, 109 S. Ct. 2765 (1989).
239. Giarratano,109 S.Ct. at 2778-79 (Stevens,J., dissenting); accord Mello, supra note 32,
at 519 (concluding that state postconviction is extension of direct appeal because it is procedural mechanism for raising claims not raised earlier).
240. Brief of the American Civil Liberties Union as Amicus Curiae in Support of Respondents at 23-24, Murray v. Giarratano, 109 S.Ct. 2765 (1989) (No. 88-411) [hereinafter ACLU
Brief] (concluding that Virginia should not be allowed to deny meaningful review by not providing counsel simply because, under its own criminal procedure, it chose to review this claim
at collateral proceeding).
241. The Court's efforts in this regard have not been entirely well-received. See Robbins,
Whither (or Wither) Habeas Corpus?: Observations on the Supreme Court's 1985 Term, 11 F.R.D. at
301 (concluding that procedural efforts have made habeas corpus too mercurial and perceptively unfair both in individual and categories of cases); Yackle, supra note 19, at 994 (observing that Court has established procedural barriers that may frustrate effective use of habeas,
especially by pro se petitioners); accord Wilkes, supra note 25, at 24. For a comprehensive critique of the current confusion in the doctrine and practice of habeas corpus, see Friedman,
796
[Vol. 39:765
These rules shift the responsibility for enforcing the right of constitutional trial and sentencing to state courts, even though death penalty jurisprudence remains largely a matter of federal law. 24 2 The
increased significance of state postconviction proceedings makes it
an integral part of federal habeas corpus, which now appoints counsel in death penalty cases. 24 3 Thus, the refusal to appoint counsel at
state postconviction is not only anomalous and inconsistent, it also
24 4
frustrates federal statutory policy.
In sum, the difference between capital and noncapital cases at
postconviction is sufficient to distinguish Giarratanofrom Finley. The
success rate of death-row inmates demonstrates the importance of
habeas corpus in the review of capital punishment cases. In the
sense that the state postconviction process may be the equivalent of
direct review, the protection offered at direct review should also extend to postconviction. Finally, that the state postconviction process has become an important vindicator of constitutional rights
supports the proposition that the protections of the fourteenth
amendment should be given broad application.
2. Factors Giarratano Failed to Address
The unique nature of the death sentence permeates death penalty
jurisprudence and symbiotically renders capital cases even more different. At least five manifestations of the problems associated with
the death penalty support the distinction between capital and noncapital cases. First, the substantive law of capital punishment is difficult; capital cases involve issues in addition to generally applicable
evidentiary and procedural matters. 24 5 Idiosyncratic death penalty
procedures, alone or in hybrid form, often control the outcome of
the case. 24 6 The substantive law governing capital cases constantly
supra note 19, at 272 (noting that rules governing access to habeas are confusing and internally inconsistent).
242. Wright & Miller, supra note 12, at 670 (commenting that searching federal review of
death sentence in capital cases is based on federal principles created by Court).
243. See supra note 37 and accompanying text (discussing federal law providing for appointment of counsel for death row petitioners).
244. Brief of the American Bar Association as Amicus Curiae in Support of Respondents at
53-54, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-411) [hereinafter ABA Brief]
(arguing that, without competent counsel at state postconviction, death-row inmates will fail
to raise meritorious claims, which, because of exhaustion requirement, will not be addressed
at federal habeas corpus court, thereby frustrating statutory policy).
245. Robbins Report, supra note 42, at 32 (listing special voir dire ofjurors, presentation
of evidence going to guilt or innocence and punishment, special penalty procedures, including additional factual findings by jury, proportionality review, and critical questions of competence of counsel).
246. Millemann, supra note 200, at 488 (citing examples ofjury selection, admissibility of
evidence, minimally permissible argument, and sharing of sentencing responsibility between
judge and jury).
1990]
MURRAY
v
GIARRATANO
797
changes as it assimilates the recent rulings of other courts. 24 7 In
addition, the sentencing decision is subject to a separate and inconsistent set of principles.2 48 This results in a greater possibility of
constitutional error in capital than in noncapital cases.
In addition, the substantive and procedural law of postconviction
remedies adds another level of complexity to a capital case.2 4 9 In a
1987 article, former Chief Judge of the Eleventh Circuit, John
Godbold, pointed out this complexity as well as the corresponding
deficiencies of most lawyers in capital cases. 2 50 Federal and state
judges, recognizing that attorneys need specialized guidance, supported the creation of state and federally-funded resource centers
dedicated to assisting counsel in collateral proceedings.2 5 1 Both
state and federal judicial and legislative bodies recognize the com25 2
plexity of capital proceedings in habeas corpus.
Second, postconviction litigation occurs in an order and at a pace
different from that of typical legal actions.2 5 3 The well-documented
247. Id. at 488-89 (observing that decisions of both Supreme Court and lower federal
courts, even of different districts, may apply to current case); see also Robbins Report, supra
note 42, at 61-62 (observing that one difference between competent and incompetent attorneys is that competent lawyers stay abreast of current developments in law).
248. Millemann, supra note 200, at 489-95 (arguing that inherent and unresolved tension
between "limited discretion" and "particularized considerations" in sentencing law leads to
inconsistent holdings).
249. See supra notes 26-31 and accompanying text (noting federal court's role in collateral
proceedings). For instance, the rules governing waiver and procedural default require that
the petitioner grasp which issues the trial attorney preserved and which were waived. Millemann, supra note 200, at 499. This inquiry is important because if the petitioner fails to
identify and raise a potential claim at state postconviction, federal courts presume waiver and
will not hear the claim. Id. In addition, petitioners must also master claims of ineffective
assistance of counsel. Id. at 495.
250. See Godbold, supra note 229, at 863 (stating that "habeas corpus is as unfamiliar to a
lot of lawyers as atomic physics"); accord Robbins Report, supra note 42, at 61-62 (observing
that many lawyers appointed to postconviction review are totally ignorant of habeas corpus
law and procedure and thus make serious mistakes that deprive clients of meaningful review);
ABA Brief, supranote 244, at 11-13, 37 n.41 (quoting comments of various judges on difficulty
of capital postconviction law and noting that constraints of time and finances cause many
volunteers to do poor job in handling postconviction proceedings for death-row inmates).
251. ABA Brief, supra note 244, at 53 (listing Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee,
and Texas as states with resource centers).
252. Brief of the Maryland State Bar Association, State Bar of Michigan, North Carolina
State Bar, South Carolina Bar Association, West Virginia State Bar as Amid Curiae in Support
of Respondents at 36 n.17, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-411) [hereinafter State Bar Brief] (noting this recognition and support and concluding that it rebuts
argument that death-sentenced inmates have meaningful access without assistance of
counsel).
253. Robbins Report, supra note 42, at 32-33 (commenting on chaos resulting from extraordinary time constraints). One exceptional example of the chaos is the case of FrankJ.
Coppola, as chronicled by former Supreme Court Associate Justice Arthur J. Goldberg.
Goldberg, The Supreme Court Reaches Out and Touches Someone-Fatally, 10 HASTINGS CONST. L.Q.
7, 10-11 (1982). The Court denied a stay of execution to Coppola after discussions conducted in a conference telephone call. Id. Coppola was executed later that evening. Id.
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 39:7'65
chaos is characterized by a "frenetic pace of last-minute applications
for writs, accompanied by frenzied paperwork from the attorneys,
procedural ambiguities arising from simultaneous proceedings in
state and federal courts, and rapidly convened hearings and conferences." 25 4 Moreover, many states set execution dates for defendants who are without an attorney to begin the process, or whose
attorneys have not yet filed petitions or completed postconviction
litigation. 2 55 With or without an attorney, research into substantive
merits must be undertaken in conjunction with appeals for stays of
execution. Given the combination of the complex legal issues and
the significant time constraint, death penalty litigation must be recognized as different from noncapital litigation.
Third, inmates encounter obvious difficulty in litigating capital
postconviction cases. The majority of death-row inmates are functionally illiterate, and, therefore, incapable of reviewing transcripts,
performing legal research, or preparing pleadings. 25 6 The State of
Virginia argued in Bounds that providing law libraries to inmates is
an exercise in futility, given that prison writ writers are "ill'2 5 7
equipped to use the tools of the trade of the legal profession.
Yet, in Giarratano,Virginia argued that law libraries can be used effectively by these same prisoners.
In addition to illiteracy, many inmates suffer from mental retardation and mental illness.2 5 8 A death-row inmate's realization of impending execution contributes to mental illness.2 5 9 Death row
inmates either minimize the gravity of their position or fatalistically
accept their position and see themselves as pawns in a process over
which they have no control. 2 60 As a result, inmates are rarely able to
254. Robbins Report, supra note 42, at 33.
255. In Virginia, the execution date may be set for thirty days after an affirmance of the
sentence by the state supreme court. VA. CODE ANN. § 53.1-232 (1988). The inmate then has
thirty days to write a petition for a postconviction hearing. Giarratano v. Murray, 668 F.
Supp. 511, 513 (E.D. Va. 1986). Furthermore, time may be wasted while volunteers try to find
an attorney to accept the case; this was the dilemma of Earl Washington, Jr. See supra note 6;
see also Wilson & Spangenberg, supra note 34, at 337 (noting that work on cases under execution deadline requires increased effort).
256. See Mello, supra note 32, at 549 (noting that over 50% of Florida's inmates are functionally illiterate). As of 1968, federal and state prisoners completed an average of eight years
of formal education. Id. In Texas, prisoners completed an average of five years of school, in
Louisiana, six years, and in Florida, 49%o had less than nine years of education. Id.
257. Bounds v. Smith, 430 U.S. 817, 826-27 (1977).
258. Mello, supra note 32, at 549; State Bar Brief, supra note 252, at 20-21 (recounting
studies that chart this phenomenon).
259. See Brief for Respondents at 16, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No.
88-411) (describing emotional toll of death row); State Bar Brief, supra note 252, at 21-22
(discussing relation between death sentence and mental illness); Millemann, supra note 200, at
500 (concluding that, at minimum, impending death increases "risk of error" factor in decision making).
260. R. JOHNSON, CONDEMNED TO DIE 94-95 (1981).
1990]
799
complete the necessary research to write a petition. 2 6 1 Further, it is
exceedingly difficult for inmates to function in the manner necessary
to begin a successful collateral appeal. 26 2 To require an inmate to
simultaneously prepare for and fight against death is unreasonable
and inhumane. 26 3 The complexity of postconviction proceedings
and the inability of inmates to operate within it-either because of
illiteracy, mental retardation, mental illness, or the need to come to
terms with death-further distinguishes capital from noncapital
inmates.
Fourth, there is an acknowledged shortage of attorneys willing to
accept habeas death penalty cases on a pro bono basis, 264 because the
work is complex and emotionally draining. 26 5 The enormous time
commitment imposed by a postconviction capital case also contributes to the shortage. 266 Further, attorneys spend more time at state
261. See State Bar Brief, supra note 252, at 21 (asserting that mental disorders hinder inmates ability to work pro se). The effect of the conjunction of complex legal issues and the
inmate's inability to cope with these issues is most clear in claims of ineffective assistance of
counsel. Millemann, supra note 200, at 486-87. The mentally ill or retarded petitioner may
have a claim of ineffective assistance of counsel if the trial attorney failed to raise the issue as a
mitigating factor at sentencing. Id. Ironically, the mentally ill inmate is the least able inmate
to assert the claim as a pro se litigant. Id.
262. Giarratano v. Murray, 668 F. Supp. 511, 513 (E.D. Va. 1986) (concluding that inmates are least capable of "rapidly performing the complex and difficult work necessary to file
a timely petition" just at time they are required to do so), modified, 836 F.2d 1421 (4th Cir.),
aff'd, 847 F.2d 1118 (4th Cir. 1988) (en banc), rev'd, 109 S. Ct. 2765 (1989).
263. See Ford v. Wainwright, 477 U.S. 399, 421 (1986) (PowellJ., concurring) (observing
that "most men and women value the opportunity to prepare mentally and spiritually for their
death"); Testimony ofJohn Charles Boger, Trial Transcript at 33-34, Giarratano v. Murray,
668 F. Supp. 511 (E.D. Va. 1986) (testifying that "very few death-row inmates even have
emotional resources to talk with you meaningfully at that point about their cases. Much less
to take it over."); E. KoUBLER-Ross, QuESTIONS ON DEATH AND DYING 91 (1974) (stating that
as death nears patient withdraws by shutting out external input, becomes introspective, tries
to recall significant incidents and people and ruminates about past to summarize value of life
and to search for its meaning).
264. Powell, supra note 124, at 1040 (commenting on difficulty of obtaining counsel for
collateral review); accord Remarks of Justice Lewis F. Powell at the Eleventh Circuit Judicial
Conference 8-9 (May 12, 1986) (noting inadequacy of using volunteer lawyers); Mikva &
Godbold, supra note 229, at 23 (stating that authors endorsed judicial resource centers because court "ran out of lawyers to file habeas petitions in the federal system"); Robbins Report, supra note 42, at 61 (asserting that persons knowledgeable about collateral procedures
recognize lack of counsel crisis); Brief for Respondents at 23, Murray v. Giarratano, 109 S.
Ct. 2765 (1989) (No. 88-411) (recounting efforts of volunteer coordinator to engage pro bono
attorneys in Virginia); ABA Brief, supra note 244, at 45-46 (citing ABA efforts to recruit volunteers and concluding that extraordinary burdensomeness and complexity of capital postconviction proceedings make it unfeasible to rely on volunteers).
265. Time and Expense Analysis in Post-Conviction Death Penalty Cases, American Bar Association Post Conviction Death Penalty Representation Project 22-23 (Feb. 1987) [hereinafter
Time and Expense Analysis] (collecting comments from death penalty volunteer lawyers); accord
Wilson & Spangenberg, supra note 34, at 337 (citing enormous time and effort, emotional
cost, frustration, and disenchantment as reasons for shortages).
266. Time and Expense Analysis, supra note 265, at 13-14 (finding that lawyers spend median
of 665 hours on state capital postconviction cases and also finding that for those attorneys
who documented their time, figure rose to 963 hours).
800
THE AMERICAN UNIVERSrrY LAW REVIEW [Vol. 39:765
collateral proceedings than at any other stage of review. 2 67 In fact,
the first stage of a pro bono capital case will occupy an attorney for
one-quarter of the working year, a commitment of time that very few
268
have the luxury to even consider.
Increases in the number of habeas attorneys alone, however, will
not solve the problems confronting both direct and collateral proceedings. Indeed, one of the most serious problems confronting
the orderly administration of capital cases is the growing number of
death row inmates. 269 As ofJune 1988, less than half of death-row
inmates had begun collateral proceedings and 1,266 were awaiting
direct review. 2 70 The projected doubling of the death-row prison
27 1
population in the next decade compounds the existing problem.
The frustration of dealing with the combination of complex issues, contracted time periods, and mounting numbers of cases often
results in angry outbursts from the bench. 2 72 Those who do choose
to donate time and energy are often criticized for their efforts. 27"
267. Wilson & Spangenberg, supra note 34, at 336 (reporting studies that found 400-500
hours required for state postconviction case, where only 300 hours required for federal district and circuit habeas cases).
268. See Mercer v. Armontrout, 864 F.2d 1429, 1433 (8th Cir. 1988) (noting that average
time spent in death-sentence postconviction review is one-quarter of lawyer's annual billable
hours).
269. Amsterdam, supra note 32, at 50 (observing that backlog exists largely because of
Court rulings).
270. Id.; see Wilson & Spangenberg, supra note 34, at 332 n.17 (noting that 250 prisoners
are sentenced to death every year). In 1989, an estimated 345 more death-row inmates filed
habeas petitions in the federal courts. Time and Expense Analysis, supra note 265, at 25. In 1990,
an estimated 425 inmates will file habeas petitions. Id. All of these claims will be heard first
by state postconviction courts. Id.
271. Streib, Executions Under the Post-Furman Capital Punishment Statutes, 15 RtrrGuRs LJ.
443, 487 (1984) (concluding that if death sentencing rate continues at pace of approximately
200 per year and execution reaches 1935 high of 199 per year, result will mean irreducible
five to ten year backlog of condemned prisoners on death row).
272. See Whitmore v. Arkansas, 229 Ark. 55, 60, 771 S.W.2d 266, 269 (1989) (abolishing
Arkansas' court rule authorizing postconviction relief). In its May 30, 1989 decision eliminating postconviction relief, the Arkansas Supreme Court cited improper manipulation of the
process, a burgeoning number of appeals, and the threat to the finality of criminal convictions. Id.; see Coleman v. Balkcom, 451 U.S. 949, 958 (1981) (Rehnquist, J., dissenting) (accusing federal courts and Supreme Court of converting "constitutional limits upon imposition
of death penalty by States and Federal Government into arcane niceties which parallel the
equity court practices described in Charles Dickens' 'Bleak House' "). RetiredJustice Lewis F.
Powell, Jr. recently wrote that he believed most judges agreed that postconviction remedies
are abused. Powell, supra note 124, at 1039 (1989); accord Amsterdam, supra note 32, at 52-56
(chronicling comments of Supreme Court justices that betray impatience with collateral
relief).
273. See, e.g., Sullivan v. Wainwright, 464 U.S. 109, 112 (1983) (Burger, C.J., concurring)
(complaining that death penalty lawyers are treating judicial system like sporting contest);
Gray v. Lucas, 463 U.S. 1237, 1240 (1983) (Burger, C.J., concurring) (perceiving effort to
frustrate valid judgments); Franklin v. Lynaugh, 860 F.2d 165, 166 (5th Cir.) (per curiam),
cert. denied, 109 S. Ct. 1304 (1988) (warning that perceived abuses will result in sanctions); Bell
v. Lynaugh, 858 F.2d 978, 985-86 (5th Cir.) (Jones,J., concurring), stay granted, 109 S. Ct. 254
(1988) (suggesting that attorneys who engage in delay tactics should be barred from practice
for period of years).
1990]
MURRAY
v.
GIARRATANO
801
Working without tangible reward is an acceptable component of
volunteer efforts, but risking censure is unacceptable, and is unlikely
2 74
to increase the pool of volunteer attorneys.
Moreover, even if the volunteer system is improved, some question exists as to whether volunteers are competent to perform the
work. Given the complexity of habeas corpus and the benefits associated with specialization, the presumption that "Wall Street lawyers," versed in corporate transactions, will be adequate adversaries
against state prosecutors is suspect. 2 75 The district court expressed
a more fundamental consideration when it observed that it is undesirable that the significant function of reviewing a death sentence
2 76
should be dependent on goodwill and happenstance.
The Court in Giarratanoeffectively ruled that death is not different
enough to extend the constitutional protection accorded trial and
direct review to postconviction proceedings. This conclusion is intuitively and rationally unsatisfactory because the inherent quality of
death does not change when the inmate begins postconviction action. That a state decided to offer postconviction relief, rather than
act under a constitutional obligation, does not alter the nature of
death. In fact, it has been shown that capital prisoners' collateral
attacks are made even more difficult, and correspondingly different,
27 7
because of the nature of that litigation.
The most disturbing aspect of the Giarratanodecision is its reliance on classification, rather than on well-reasoned argument. The
Court placed Giarratanoin the same category as Ross and Finley, despite the fact that neither of those cases involved the death penalty.
The application of conclusory labels is unsatisfactory because the
method does not divulge the underlying reasoning that facilitates
dialogue and consequent development of the law. 2 78 Basing a rul274. Robbins Report, supra note 42, at 65-68 (observing that threat of sanctions may have
chilling effect on supply of volunteer lawyers).
275. See supra note 250 and accompanying text (discussing assertions that habeas is foreign to most attorneys). See generallyJudge, Death Row Defense, Wall Street Style, AM. LAW., Jan.Feb. 1989, at 35 (accounting that Wall Street firm of Cahill Gordon & Reindel spent $1.7
million in defense of death-row inmate S. Rice Johnson). How Good Are Death Row Lawyers?,
HUMAN RIGHTS, Spring 1989, at 36 (discussing study finding that in 40% of postconviction
cases, arguably innocent inmates are sentenced to death).
276. Giarratano v. Murray, 668 F. Supp. 511, 515 (E.D. Va. 1986) (commenting that
"[tihe matter of a death row inmate's habeas corpus petition is too important-both to society
... [and] to the individual involved-to leave to, what is at best, a patchwork system of
assistance").
277. See supra text accompanying notes 243-74 (discussing distinguishing traits of
postconviction).
278. See generally Friedman, supra note 19, at 252 n.28 (noting that when Court fails to give
reasons dialogue suffers accordingly); Wechsler, The Courts and the Constitution, 65 COLUM. L.
REV. 1001, 1012 (1965) (noting that reasons for choices Court espouses become basis of dialogue initiated by decision). As one commentator has noted, "a particular legal decision is
802
[Vol. 39:765
ing on a classification is an essentially anti-intellectual approach that
can lead to unjustified extensions and limitations of past cases. 2 79
Even if the decision in Giarratanowere correct, this method is inadequate because it does not guide lower courts in the application of
the decisions to different facts. Further, the Court did not fully engage the doctrine of stare decisis by analyzing the underlying principles of previous cases. 280 The Court's highly definitional approach,
which separates the case from its context, artificially divides the issue so that the analysis focuses on discrete underlying issues. As a
result, Giarratano focused on the constitutional status of the proceeding rather than on the overriding jurisprudence of the right to
counsel in capital cases. 28 ' The danger of this method is that the
decision's ultimate effect is not immediately obvious. Here, the focus on the postconviction posture led to changes in due process and
death penalty jurisprudence, which were not discussed, and perhaps
not considered. Cases such as Giarratano, which involve multiple
strands of constitutional doctrine, require a wider perspective-one
that views each doctrine in its relationship with another.
C.
Where Does the Concurrence Lead?
Justice Kennedy, joined by Justice O'Connor, acknowledged that
not necessarily carved in stone. It is only a resting point between the previous case and the
succeeding one, and much more often than not it raises more questions than it answers."
Robbins, supra note 27, at 89. The law develops by raising and addressing those questions.
279. See Friedman, supra note 19, at 270 (observing that Court has applied "categorical
balancing" methodology frequently in recent habeas decisions by applying rules that are unlikely to balance dissimilar interests inherent in habeas jurisprudence); see also Smith v. Bennett, 365 U.S. 708, 712 (1961) (ruling that availability of procedure to regain liberty cannot be
made contingent upon choice of labels); Honore v. Washington State Bd., 77 Wash. 2d 660,
668, 466 P.2d 485, 492 (1970) (en banc) (proposing that mere repetition of classification,
though numerically impressive, contributes no real substance to debate); People cc rel. Williams v. LaVallee, 19 N.Y.2d 238, 240, 225 N.E.2d 735, 736, 279 N.Y.S.2d 1, 3 (1967) (holding that defendant should not be deprived of counsel on formalistic distinction and that
content and nature of relief sought, as well as basis of error or defect, should be determinative
and not procedural form of proceeding).
280. Murray v. Giarratano, 109 S.Ct. 2765, 2771 (1989). The Court failed to examine the
foundation of meaningful access, stating somewhat ambiguously that "[w]hether the right of
access at issue in Bounds is primarily one of due process or equal protection, in either case it
rests on a constitutional theory considered in Finley." Id. As demonstrated previously, Finley
did not address Bounds. See supra notes 209-10 and accompanying text.
The Court also utilized this method in Ross and Finley. Finley placed postconviction in the
same category as discretionary review. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); see
supra notes 203-08 and accompanying text (describing Finley's extension of Ross). The Court
failed to address and compare the function of the respective proceedings, legislative and case
history, and their place in the constitutional scheme. Id. In Ross, the distinction between
trial/appeal and collateral proceedings was based solely on whether state law or the Constitution authorized the proceeding, and failed to balance any competing interests or to address
the purpose of the proceedings. Ross v. Moffitt, 417 U.S. 600, 610 (1974).
281. See supra notes 203-16 and accompanying text (noting reliance on fact that proceeding is not directly mandated by Constitution).
1990]
MURRAY
v.
GIARRATANO
803
"collateral relief proceedings are a central part of the review process
for prisoners sentenced to death." 28 2 Recognizing the reality of
death penalty litigation, the concurrence noted that a substantial
number of inmates succeed in having death sentences vacated and
that death-row inmates need help because of the "complexity of our
jurisprudence in this area." 28 3 These same points, however, were
used by the dissent to distinguish Finley and to justify appointed
counsel under a Bounds due process balancing analysis. 28 4 They are
also the factors upon which the dissent relied to equate postconviction proceedings with direct review.2 8 5 Thus, five justices agreed
that postconviction proceedings closely resemble direct review for
which counsel is appointed under Douglas.
Even if the concurrence resists this analogy, Justice Kennedy's
opinion falls short of supporting the plurality. Under Bounds, states
must satisfy the obligation to provide meaningful access to the
courts by making either law libraries or legal assistance available. 28 6
In Giarratano,five justices agreed that law libraries do not provide
meaningful access in capital postconviction cases. The question
then is what level of "legal assistance" is adequate to maintain
meaningful access. The evidence provided by statistical data, 28 7 legislatures,2 8 8 individual testimony, 2 89 and federal judges2 90 is that
"adequate legal assistance" means "lawyer." The concurrence implicitly endorsed this conclusion by noting that Virginia provided
meaningful access because it provided lawyers. 291
282. Giarratano,109 S. Ct. at 2772 (Kennedy, J., concurring).
283. Id. (Kennedy, J., concurring). It is unclear whether "this area" refers to death sentence jurisprudence or the complexity of procedural habeas corpus, or their combination.
286. Bounds v. Smith, 430 U.S. 817, 827 (1977); see supra notes 91-95 and accompanying
text (discussing Bounds decision).
287. See supra note 229 and accompanying text (documenting high rate of success in appeal of capital cases).
288. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4393 (to be codified at
21 U.S.C. § 848(q)(4)-(10)) (requiring appointed counsel for appellants in federal habeas
corpus actions); see Wilson & Spangenberg, supra note 34, at 334 (stating that 19 states provide mandatory appointment of counsel upon request).
289. See supra notes 250-63 and accompanying text (citing opinions of numerous experts).
290. Powell Report, supranote 218, at 4 (recommending legislation to encourage states to
appoint counsel because attorney is crucial in ensuring fairness and protecting constitutional
rights of capital litigants).
291. Giarrafano,109 S. Ct. at 2773 (Kennedy, J., concurring) (observing that no death-row
inmate is without counsel in Virginia and that institutional lawyers staff Virginia prisons, but
ignoring lower court findings that these attorneys do not help inmates to prepare petitions
and attorneys are ineffective as counsel because their function is solely advisory).
As the following demonstrates, this point was left unresolved at oral argument:
Question: As of now, everybody gets a lawyer who wants one?
Mr. Harris (for Virginia): As of now, every inmate has had a lawyer.
Official Transcript at 25, Murray v. Giarratano, 109 S. Ct. 2765 (1989) (No. 88-41 1).
804
VI.
[Vol. 39:765
THE IMPLICATIONS OF GIARRATANO
Giarratanoaffects habeas corpus, due process, and the death penalty, as well as the individuals who are subject to these doctrines. If
the plurality decision is accepted, inmates in states that do not provide attorneys at the petition stage will continue to write petitions
without the assistance of counsel. Between the affirmance of their
conviction on direct appeal and the filing of the habeas petition,
these inmates remain at risk of execution. 292 Giarratanoalso threatens inmates in those states that do provide counsel because, absent
a constitutional obligation, legislatures may eliminate this aid when
pressed with demands to allocate funds to "mainstream"
programs. 293
Without counsel, fewer death-row inmates will have meaningful
access to postconviction hearings, and some prisoners, whose claims
may have ultimately been successful, will be executed. 294 The type
of claims raised at habeas in capital cases, such as ineffective assistance of counsel or retroactive applicability, can only be developed in
collateral proceedings. 295 If the Court was influenced by the need
to reduce the backlog of pending executions, it would have been
wiser, and fairer, to address that issue separately. Further, Giarratano leaves a significant question unresolved: How will the Court
rule when faced with the impending execution of an inmate who was
not represented at postconviction? 296
In addition, Giarratanowill result in more inmates filing pro se petitions. 297 This will increase the workload of federal habeas courts
because of the enhanced care required to evaluate the state court's
Question: Counsel, do we have a situation where a Death Row prisoner has asked
the institutional attorney for help and been refused?
Mr. Zerkin (for Giarratano): Yes, Justice O'Connor, we do.
Id. at 37.
292. Wilson & Spangenberg, supra note 34, at 337 (discussing probable impact if Giarratano denied right to counsel at postconviction).
293. Id. (suggesting that decision holding that meaningful access does not mandate attorneys could result in "atrophy or disappearance of existing state systems"); accord Robbins
Report, supra note 42, at 98 (forecasting that states may choose to eliminate funding).
294. Berger, supra note 222, at 1323-24 (explaining that any curtailment of rights or remedies in habeas corpus procedure affects death penalty claims disproportionately); accord
Wechsler, supra note 13, at 175 (noting that claim relating to counsel could rarely be vindicated by ordinary criminal procedure because defendant would not know how to protect procedural rights).
295. See Berger, supra note 222, at 1323-24.
296. See Committee on Civil Rights, The Death Penalty, 39 REC. A.B. CiTy N.Y. 419, 425
(1984) (predicting that shortage of volunteers will lead to executions of defendants who are
unable to marshall pro se effort).
297. Wilson & Spangenberg, supra note 34, at 337 (stressing that volunteer attorneys will
be unable to handle growing caseload).
1990]
805
disposition of those constitutional challenges. 2 98 This frustrates the
Supreme Court's efforts to encourage states to share the responsibility for the enforcement of constitutional procedures. 2 99 The
need for volunteer lawyers will continue to grow, with corresponding reliance on resource centers and the consequent demand to in300
crease the funding for such centers.
VII.
RECOMMENDATION
The Supreme Court's failure to require states to appoint counsel
at state postconviction proceedings should not prevent Congress
from enacting legislation that addresses this issue. 3 0 ' The growing
number of capital cases in or approaching collateral proceedings,
the complexity of habeas corpus jurisprudence, and the failure of
the volunteer system to represent inmates adequately, justify legislative intervention.302 Appointment of counsel during state postconviction proceedings would also result in a consistent approach
between state proceedings and federal habeas corpus actions, which
already require appointed counsel. Further, legislation that effectively requires states to appoint qualified counsel would increase the
efficiency of the collateral process, and would protect the right to a
303
constitutionally fair trial.
Three different proposals have been considered by Congress, the
judiciary, and the American Bar Association.3 0 4 Each proposal
strikes a different balance between the values expressed by the Con298. Id. (noting heavy burden on federal courts to examine carefully state decisions on pro
se cases); accord Robbins Report, supra note 42, at 25 (observing that presence of counsel
would avoid failure to include claims and failure to exhaust others, inadequate factual development, poor briefing, remands from courts of appeals, second petitions, and other
problems); Powell Report, supra note 218, at 4 (noting that pro se petitioners rarely promptly
present or promptly exhaust their constitutional challenges, are improperly dismissed, and
usually must petition federal habeas courts); Powell, supra note 124, at 1040 (noting that when
counsel not available "from the start" courts are less able to ensure that all meritorious claims
are addressed).
299. See supra notes 25-31 and accompanying text (providing examples of efforts to increase significance of state postconviction proceedings).
300. Robbins Report, supra note 42, at 98-99 (predicting continuing pressure on supply of
volunteer counsel and consequent need of resource centers for greater funding and staffing).
301. Legislation is especially appropriate given the invitation extended by the concurrence. See Murray v. Giarratano, 109 S. Ct. 2765, 2773 (1989) (Kennedy,J., concurring) (suggesting that legislation is necessary given significance of attorney contribution and fact that
Virginia satisfied meaningful access only because no inmate went unrepresented).
302. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4393 (to be codified
at 21 U.S.C. § 848(a)(4)-(10)). This provision is, however, now subject to attack by a bill
introduced by Senator Thurmond, which, if enacted, would repeal the counsel provision. See
S. 1225, 101st Cong., Ist Sess. § 3598B (1989).
303. See Robbins Report, supra note 42, at 25 (concluding that competent and qualified
counsel would enhance fairness of proceeding, allow for more rational review, and increase
efficiency of habeas process).
304. See S. 1760, 101st Cong., Ist Sess., 135 CONG. REC. S. 13,480-86 (1989) [hereinafter
806
stitution. In general, the proposals seek to protect the individual
against an unconstitutional trial and sentence, while also protecting
those values underlying the state's role in criminal law-the protection of the community by justly and swiftly punishing those who offend its standards. Each of the proposals provide counsel at state
postconviction proceedings in return for restricted access to collateral proceedings by regulating the time and scope of the appeal.
The Powell Report, introduced into Congress by Senator Strom
Thurmond, is a reaction to the perceived problems of piecemeal
and repetitious litigation, delay, and loss of public confidence in the
judicial system.3 05 The second proposal, introduced by Senator Joseph Biden, addresses those problems and also recognizes an inmate's right to full review of claims of unconstitutional trial and
sentencing. 30 6 The Biden proposal advocates a one-year statute of
limitations period and provides a more liberal implementation of
the trade-off between counsel and the restricted timing. 3 07 The
A.B.A. proposal emphasizes the historic values of habeas corpus,
recognizes a concern for individual rights, and attempts to strike a
balance between those rights and the deference due state court
decisions.308
The three proposals accept a trade-off of appointment of counsel
at state postconviction proceedings for a time limit in which the inmate may initiate a federal collateral appeal. Each proposal also
specifies that the postconviction counsel must be a different attorney than the one who represented the prisoner at trial; this require-
Thurmond Bill]; S. 1557, 10 1st Cong., 1st Sess., 135 CONG. REC. S. 13,474-75 (1989) [hereinafter Biden Bill]; Robbins Report, supra note 42.
305. Powell Report, supra note 218, at 4; S. 1760, 101st Cong., 1st Sess., 135 CONG. REC.
S. 13,482 (1989). The report, released on September 21, 1989, forms the basis of the bill
introduced by Senator Thurmond. The Judicial Conference postponed a vote on the Report
in order to canvas the judiciary for reactions to it.
The proposal is the product of a committee appointed by Chief Justice Rehnquist, in his
capacity as Chairman of the Judicial Conference of the United States. Powell Report, supra
note 218, at 1. Retired Supreme Court Justice Lewis F. Powell, Jr. chaired the committee on
which ChiefJudge Charles Clark of the United States Court of Appeals for the Fifth Circuit,
ChiefJudge Paul H. Raney of the Eleventh Circuit, and Federal District Judges William Terrell Hodges of Florida and Barefoot Sanders of Texas also served. Id. at 2.
ChiefJustice Rehnquist sparked significant controversy when, apparently against the wishes
of the Judicial Conference, he sent the Report to Senator Biden, chairman of the SenateJudiciary Committee. N.Y. Times, Oct. 6, 1989, at Al, col. 4. Subsequently, thirteen federal
judges protested Chief Justice Rehnquist's premature transmission in a letter that they released to the public. Id. Under the terms of a provision of the Anti-Drug Abuse Act, once the
Judicial Committee received the report, it was obligated to introduce legislation on the topic.
Id.
306. See 135 CONG. REC. S13,473 (daily ed. Oct. 13, 1989) (statement of Sen. Biden) (justifying support for limiting number of times one prisoner can seek federal habeas when "procedure is as fair as possible" to prisoner).
307. Id.
308. See Robbins Report, supra note 42, at 28-44.
1990]
MuRRAY v. GIARRATANO
807
ment facilitates claims of ineffective assistance of counsel.3 0 9 Each
proposal also establishes automatic stays of execution during the
course of state and federal collateral litigation proceedings.3 10 Finally, each proposal states that providing counsel at postconviction
proceedings will not support a claim by the petitioner that such
3 11
counsel was ineffective.
Despite these similarities, the three proposals differ substantially.
For example, although the ABA and Biden proposals offer a one-
year period in which an inmate may initiate postconviction proceedings, the ABA plan offers a more liberal tolling provision than the
Biden bill.3 1 2 In contrast, Senator Thurmond's bill recommends a
six-month time period, with tolling limited to state postconviction
proceedings.3 1 3 The most significant difference among the propos-
als is that only the ABA plan provides an enforcement device for
provision of counsel.3 1 4 The other two proposals rely on the benefit
of the shorter statute of limitations to operate as an incentive to the
states to provide counsel.3 15 In contrast, the ABA plan provides
that unless the state provides competent and adequately compen-
sated counsel it will not receive the benefit of the many procedural
barriers usually accorded the state at federal habeas corpus.3 1 6
Thus, the federal habeas courts would not recognize the requirement that state remedies be exhausted, procedural defaults that re-
sult from the failure to raise a claim in state court, or the
309. See Thurmond Bill, supra note 304, § 2256(d); Biden Bill, supra note 304, § 2256(d);
Robbins Report, supra note 42, at 101. The American Bar Association proposal changes
counsel on appeal. Robbins Report, supra note 42, at 101. The Biden and Thurmond proposals change counsel at postconviction. Thurmond Bill, supra note 304, § 2256(d); Biden Bill,
supra note 304, § 2256(d).
310. See Thurmond Bill, supra note 304, § 2257(a); Biden Bill, supra note 304, § 2257(a);
Robbins Report, supra note 42, at 258.
311. See Thurmond Bill, supra note 304, § 2256(e); Biden Bill, supra note 304, § 2256(e);
Robbins Report, supra note 42, at 103. If a right to claim ineffective assistance of counsel
exists at collateral proceedings, it could infinitely extend collateral litigation because inmates,
if their claims were unsuccessful, could claim ineffective assistance. See Official Transcript at
45-59, Murray v. Giarratano, 109 S. Ct. 2765 (1989); see also Comment, Repetitive Post-Conviction PetitionsAlleging Ineffective Assistance of Counsel: Can the Pennsylvania Supreme Court Tame the
"Monster"?, 20 Dug. L. REv. 237, 256 (1982) (discussing Pennsylvania cases that invite repetitive petitioner claiming incompetent counsel).
312. See Biden Bill, supra note 304, § 2258 (limiting period to that between filing date of
certiorariand date of final disposition); Robbins Report, supra note 42, at 326-27 (extending
period to any time prisoner was unrepresented).
313. See Thurmond Bill, supra note 304, § 2258 (excluding actions by United States
Supreme Court or state postconviction courts).
315. See Thurmond Bill, supra note 304, § 2256(b); Biden Bill, supra note 304, § 2256(b).
As an additional incentive, the Thurmond Bill also restricts successive petitions. Thurmond
Bill, supra note 304, § 2257(b)(2)(B).
316. Robbins Report, supra note 42, at 178-79, 326-30.
808
[Vol. 39:765
presumption of correctness accorded state court fact findings.3 17
Another difference is that the ABA and Biden plans set minimum
qualifications and compensation for counsel.3 18 Senator Thurmond's bill, however, fails to address this issue. The ABA proposal
also applies the qualification and compensation provisions to appointed counsel at trial and appeal.3 19 These provisions ensure that
at all stages of the process the states must appoint counsel who meet
minimum qualifications and the states must adequately "compen0
sate" such counsel.3 2
The final major difference is found in the treatment of the procedural hurdles that Supreme Court decisions have erected. Both the
ABA and Biden proposals allow review of procedurally defaulted
claims that result from counsel's "ignorance or neglect" or, if necessary, to prevent a "miscarriage of justice." 3 2 1 The Thurmond Bill
does not address the issue of procedural default. Similarly, the ABA
and Biden plans enable courts to hear successive claims in order to
prevent a miscarriage of justice. 3 22 The Thurmond Bill eliminates
this established practice.3 23
Overall, the ABA proposal offers a better solution to, the
problems of repetitive litigation and delay, without overcompromising the interests of the individual. The proposal offers a comprehensive plan that requires appointed counsel and also addresses the
problems of incompetent counsel at trial and appeal. 3 21 For these
reasons, implementation of the ABA proposal is more likely to reduce collateral litigation than are the other proposals. The ABA
proposal also strikes the correct balance between the interests of the
317. See Robbins Report, supra note 42, at 103 & 107 (noting that "[tihere is little incentive for a state to opt into a plan that provides superlative restrictions on the federal writ of
habeas corpus when the alternative is to not opt into the plan and instead have only the
.merely' very good restrictions that exist under current law").
318. See Biden Bill, supra note 304, § 2261 (using standards of Drug-Abuse Act); Robbins
Report, supra note 42, at 112-14 (discussing whether Drug Act or ABA Guidelines for Appointment and Qualifications of Counsel is preferable). Ultimately, the Criminal Justice Section voted to adopt the ABA Guidelines. See Report and Recommendations, American Bar
Association CriminalJustice Section, Report to the House of Delegates, 1, 7 & 13 (Feb. 1990).
319. Robbins Report, supra note 42, at 100-03.
320. See Robbins Report, supra note 42, at 105 (arguing that initial appointment of competent counsel would shorten litigation process). Although appointed counsel is constitutionally required at trial and appeal, the only mechanism to ensure attorney competence is the
prisoner's right to file a claim of ineffective assistance of counsel. The report concluded that
"[clompetent and adequately compensated counsel from trial through collateral review is thus
the sine qua non of a just, effective, and efficient death penalty system." Id.
321. See Biden Bill, supra note 304, § 2259(2) (referring to district court adjudication);
Robbins Report, supra note 42, at 178-79.
322. See Biden Bill, supra note 304, § 2257(c) (proposing three exceptions to successive
claim preclusion); Robbins Report, supra note 42, at 328-29.
323. See Thurmond Bill, supra note 304, at § 2257.
1990]
809
death-row inmates and the state by relaxing the procedural default
rule and restricting successive petitions less severely than the Thurmond proposal.3 2 5 Because the ABA proposal mitigates the
problems of repetitious litigation and delay and respects the right to
a constitutional trial and sentence, it will maintain public confidence
in the judicial system, restore a balance between the state and federal courts, and, ultimately, ensure the integrity of the judicial
system.
VIII.
CONCLUSION
The Supreme Court's failure to extend due process protection to
state postconviction proceedings in Giarratanoresults in the denial
of appointed counsel to indigent death-row inmates. The decision
in Giarratanothreatens the right to a constitutional trial and sentence
because of its failure to apply a fourteenth amendment analysis to
state postconviction proceedings. This failure effectively eliminates
the mechanism by which citizens defend those rights that the Constitution embodies. Congress should correct this situation by requiring states to appoint counsel at state postconviction
proceedings. Unless Congress acts, the procedural safeguards of
the Constitution will be, in the words of Justice Jackson, "only a
promise to the ear to be broken in the hope, a teasing illusion like a
munificent bequest in a pauper's will." 3 2 6
325. See id. at 178-79, 326-30.
326. Edwards v. California, 314 U.S. 160, 186 (1941) (Jackson, J., concurring).

Murray v. Giarratano

Transcription

Similar documents

Homecoming Packet 2015-2016 - Meeting Portal

sycamore plaza flyer.qxp

pj whelihan`s flyer - Our Lady of Good Counsel

JEFFREY SANDLER defends clients in tort litigation

Cigars, Rock Shots and Long Drives: GC Forum`s 2nd Annual Golf

Here For Pdf Version

Mark R. Somerstein (MS 9721) Benjamin L. Schneider (BS 2004

CASE COMdENTS Murray v. Giarratano: Execution of the

Planet_Data_Collecti..