CASE COMdENTS Murray v. Giarratano: Execution of the

CASE COMdENTS
Murray v. Giarratano: Execution of the Unrepresented
I.
INTRODUCTION
In 1977, the United States Supreme Court emphatically reaffirmed
that prisoners have a fundamental constitutional right of access to the
courts.1 This right requires states to provide all prisoners with "adequate law libraries or adequate assistance from persons trained in the
law." 2 Further, to pass constitutional muster, prisoners' access to the
courts must be "adequate, effective, and meaningful."'
The right of meaningful access is one of the most important rights a
prisoner holds;4 without it, the prisoner has no means of securing any
1. Bounds v. Smith, 430 U.S. 817 (1977). The United States Supreme Court initiated a
line of prisoner access opinions beginning in 1941 with Ex parte Hull, 312 U.S. 546 (1941)
and culminating in 1977 with Bounds, which radically improved prisoners' rights to gain
access to the courts. In Hull, the Court struck down a Michigan prison regulation that
required prisoners to submit habeas corpus petitions for writs and other legal documents to
prison officials for review before allowing them to be filed with the courts. See also Bounds
v. Smith, 430 U.S. 817 (1977) (the Court found that the fundamental constitutional right of
access had been established beyond a reasonable doubt); Wolf v. McDonnell, 418 U.S. 539
(1974) (recognizing that no inmates, including those totally illiterate, may be denied the
right to bring a civil rights action to protect certain constitutional rights; the Court ruled
that prisons must allow jailhouse lawyers to function or develop reasonable alternatives to
assure that claims can be articulated); Johnson v. Avery, 393 U.S. 483 (1969) (the Court
struck down a Tennessee prison regulation that forbade prison inmates from seeking
assistance from other inmates in preparing legal documents); Gilmore v. Lynch, 319 F.
Supp. 105 (N.D. Cal. 1970), aff'd sub nom. Younger v. Gilmore, 404 U.S. 15 (1971) (per
curiam) (a California district court struck down a state prison regulation excluding state
and federal reporters and annotated codes from prison libraries, holding that the regulation
caused an unconstitutional denial of the prisoner's right of access to the courts).
2. Bounds v. Smith, 430 U.S. 817, 828 (1977).
3. Id. at 822.
4. Without access to the courts, prisoners have no area in which to seek vindication of
alleged rights violations. Thus, the right of access is the foundation upon which other
prisoners' rights depend. See Bounds v. Smith, 430 U.S. 817 (1977).
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other rights. Without access to the courts, prisoners have no forum in
which to test the constitutionality of their confinement.5
For prisoners on death row, this right has a unique significance.
When a capital prisoner seeks to contest the constitutionality of his
sentence, he literally puts his life on the line. For prisoners on death
row, meaningful access to the courts can mean the difference between
life and death. Inmates who are executed lose "the right to have
rights" 6 and are permanently deprived of court access.7
8 the Supreme Court addressed death row
In Murray v. Giarratano,
prisoners' rights to meaningful access to the courts. In this decision,
the majority acknowledged that courts must protect the right of meaningful access for prisoners. Indeed, the majority mandated that remedies such as access to adequate law libraries and assistance from legal
personnel be implemented in prisons to protect the prisoners' fundamental rights.9 The continuance of such protections, however, has
been curtailed by the Court's decision in Giarratano.
In Murray v. Giarratano" the majority set new precedent, holding
that the sixth amendment does not require that counsel be appointed
to capital inmates in post-conviction proceedings in order to ensure
that their right to meaningful access is protected." The Giarratano
Court did not uphold authority entitling a capital prisoner to postconviction representation.' 2
5. Adams v. Carlson, 488 F.2d 619, 630 (7th Cir. 1973). See also Hinckley, Bounds and
Beyond: A Need to Reevaluate the Right of PrisonerAccess to the Courts, 22 U. RICH.
L. REV. 19 (1987). The post-conviction process is of paramount importance to the
condemned. Post-conviction proceedings remove inmates from death row for a wide
variety of reasons including ineffective assistance of counsel at the trial and appellate levels,
failure to investigate or present any mitigating issues, and violation of due process by
putting mentally incompetent defendants on trial. See Thomas v. Kemp, 796 F.2d 1322
(11th Cir. 1986); Wallace v. Kemp, 757 F.2d 1102, 1121 (1lth Cir. 1985); Tyler v. Kemp,
755 F.2d 741 (11th Cir. 1985), cert. denied, 474 U.S. 1026 (1985); Barefoot v. Estelle, 463
U.S. 880, 891 (1983) (Marshall, J., dissenting).
6. Furman v. Georgia, 408 U.S. 238, 290 (1972). Furman invalidated the death sentence
as then administered. The Court found that the imposition of the death penalty was too
arbitrary to comport with the fundamental fairness standards of due process. Five months
after Furman, a special session of the Florida legislature enacted a revised death penalty
statute that the Governor signed into law. FLA. STAT. ANN. § 921.141 (West 1982).
7. Furman, 408 U.S. at 290.
8. Murray v. Giarratano, 109 S.Ct. 2765 (1989).
9. Id. at 2771.
10. 109 S.Ct. 2765 (1989).
11. Id.
12. Id. The constitutional provisions the Court refers to are: (1) the eighth amendment
protections against the arbitrary infliction of the death penalty; (2) the sixth amendment
right to counsel; and (3) the fourteenth amendment implied guarantee of meaningful
access.
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MURRA Y v. GIARRA TANO
This Comment suggests that the Supreme Court's holding in Giarratano is inconsistent with other prisoner access decisions. A close
examination of the prisoners' fundamental right to meaningful access
to the courts reveals that the appointment of counsel is permissible in
the capital post-conviction context. 3 Contrary to Giarratano,there is
constitutional authority to support the entitlement of counsel in capital post-conviction proceedings. More specifically, the due process
clause of the fourteenth amendment 4 requires that the sixth amendment right to counsel be extended to capital post-conviction proceedings. 5 This discussion begins with the procedural history of Murray
v. Giarratano.
II.
PROCEDURAL HISTORY
Joseph M. Giarratano, a Virginia death row inmate, filed in federal
court a pro sel 6 civil rights complaint seeking the appointment of
counsel for capital post-conviction proceedings. "7 By an order of May
29, 1986, the district court 18 certified a class consisting of indigent
inmates whose death sentences had been upheld on direct appeal and
who did not have (and could not afford to hire) attorneys to represent
13. In addressing whether prisoners have the right to access the courts, courts of appeal
have recognized that, under certain circumstances, inmates may require more assistance
than just a law library. See, eg., Ramos v. Lamm, 639 F.2d 559, 584-85 (10th Cir. 1980),
cert. denied, 450 U.S. 104 (1980) (access to untrained inmate library clerks was insufficient
to provide meaningful access); Lovell v. Brennan, 566 F. Supp. 672, 696 (Me. 1983), aff'd,
728 F.2d 560 (Ist Cir. 1984) (direct counseling by inmate advocate and hiring full-time
advocate for segregated prisoners was sufficient to provide meaningful access); Canterino v.
Wilson, 562 F. Supp. 106, 110-12 (W.D. Ky. 1983) (inmates without library access must be
given access to legally trained personnel).
14. U.S. CONST. amend. XIV. ("[N]or 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."). The fourteenth amendment implicitly guarantees
meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817 (1977).
15. U.S. CONST. amend. VI. ("In all criminal prosecutions, the accused shall enjoy...
the Assistance of Counsel for his defence."); U.S. CONST. amend. XIV. ("[Nior shall any
State deprive any person of life, liberty, or property, without due process of law; . .. ").
See also Lassiter v. Dep't of Soc. Serv., 452 U.S. 18 (1981). The Lassiter Court considered
the circumstances under which due process, or fundamental fairness, requires appointed
counsel.
16. "Pro se" is defined as, "[flor himself, in his own behalf; in person." BLACK'S LAW
DICTIONARY 1099 (5th ed. 1979).
17. The action was brought pursuant to 42 U.S.C. § 1983 (1986). Jurisdiction was based
on 28 U.S.C. §§ 1331, 1343 (1986).
18. Giarratano v. Murray, 668 F. Supp. 511 (E.D. Va. 1986).
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them in state habeas corpus 1 9 proceedings. 2°
A.
The District Court Opinion
The case was tried before the federal district court on July 10 and
11, 1986.21 Federal Judge Robert Mehrige held that lawyers for condemned inmates in Virginia 22 are needed in order to provide meaningful access to the courts in post-conviction proceedings.2 3
The district court based its holding on the meaningful access rationale advanced in the United States Supreme Court decision of Bounds v.
Smith.2 4 In Bounds, the Court addressed the question of whether
states must protect the right of prisoners to have access to the courts
by providing them with law libraries or adequate assistance from persons trained in the law.2" The Court held that states have an affirmative obligation to ensure
that prisoners have effective and meaningful
26
access to the courts.
Judge Mehrige noted that the Bounds decision mandated a two
prong disjunctive remedy: (1) access to a law library, or (2) assistance from persons trained in the law.27 Accordingly, the district judge
read Bounds to mean that, in general, access to a law library would
provide prisoners with minimum meaningful access to the courts.
However, Judge Mehrige found the underlying assumption in Bounds,
that libraries were sufficient to provide a prisoner with meaningful
19. "Habeas corpus" is the name given to a variety of writs which function to release
individuals from unlawful imprisonment. BLACK'S LAW DICIONARY 638 (5th ed. 1979).
20. Federal district Judge Robert Mehrige certified the class. Giarratano,668 F. Supp.
at 511.
21. Id.
22. Id. at 516-17.
23. The post-conviction proceedings that this Comment discusses generally refer to
habeas corpus petitions in which prisoners contest the constitutional validity of their
sentences. See generally Mello, FacingDeath Alone: The Post Conviction Attorney Crisison
Death Row, 37 AM. U.L. REV. 513 (1988).
24. 430 U.S. 817 (1977).
25. Bounds, 430 U.S. at 817. Thirty-five years before Bounds, the Supreme Court
recognized prisoners' constitutional right to access the courts when it struck down a
regulation prohibiting state prisoners from filing habeas corpus petitions unless properly
drawn by the prison legal investigator. See Ex parte Hull, 312 U.S. 546 (1942). See also
cases cited supra note 1.
26. Bounds, 430 U.S. at 829. The Bounds Court specifically stated that the states were
obligated 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. Id. at 828.
27. Id. at 826. This assumption accounted for the alternative nature of the required
relief: trained legal assistance or adequate law libraries. Giarratano v. Murray, 668 F.
Supp. 511, 513 (E.D. Va. 1986) (citing Bounds v. Smith, 430 U.S. 817, 826 (1977)).
1991]
MURRAY v. GIARRATANO
access to the courts, invalid as applied to death row inmates.2 8 Three
factors provided the basis for this determination.
First, the district court found that death row inmates have a limited
amount of time to prepare and present petitions to the court. 29 The
court noted that once an execution date is set, the condemned inmate
must be prepared to research, present, and conclude all of his postconviction remedies prior to the execution.3 0 The court found that
what resulted was a large amount of legal research having to be compressed into a limited amount of time.31 Non-capital inmates do not
face these kinds of time constraints.3 2
Second, the district court decided that the legal work involved in
capital post-conviction proceedings is difficult and complex.33 The
district court noted that a pro se prisoner must be capable of analyzing
the voluminous transcript of the guilt determination phase of the capital trial, as well as issues of mitigating and aggravating characteristics
of the sentencing phase.3 4 In addition, the court noted that a prisoner
must be familiar with the rules regarding exhaustion,3 5 and be aware
of the ever changing case law relating to death penalty litigation.3 6
Third, the district court reasoned that the mental stress associated
with being on death row prevents an inmate from adequately performing legal research and presenting post-conviction claims. 37 The court
held that an inmate preparing himself and his family for death is inca28. Giarratano,668 F. Supp. at 513.
29. Id. The court noted that under the Virginia Code, an execution can be carried out at
any time as long as thirty days have elapsed since the date of conviction. Id. See also VA.
CODE ANN. § 17-110.1 (1987).
30. Giarratano,668 F. Supp. at 513.
31. Id.
32. Id.
33. Capital post-conviction proceedings have been noted by several courts to be a very
complex area of law. See Hooks v. Wainwright, 536 F. Supp. 1330 (M.D. Fla. 1982), rev'd,
775 F.2d 1433 (1lth Cir. 1985), cert. denied mem., 107 S. Ct. 313 (1986). For a discussion
of the complexities of post-conviction proceedings, see Mello, supra note 23, at 531-43.
34. Giarratano v. Murray, 668 F. Supp. 511, 513 (E.D. Va. 1986). The court noted that
in Virginia, the capital trial is bifurcated, entailing separate proceedings to determine guilt
and to set the appropriate punishment. Id. Issues of mitigation and aggravation
characteristics are noted as extenuating circumstances that may excuse the prisoners'
behavior. For a brief discussion of the court's approach to extenuating circumstances, see
Mello, supra note 23, at 532.
35. Exhaustion refers to a requirement that a prisoner exhaust all state remedies before
contesting his capital conviction in a federal court. BLACK'S LAW DICTIONARY 514 (5th
ed. 1979). See Wainwright v. Sykes, 433 U.S. 72 (1977) for further discussion of the term
exhaustion.
36. The Supreme Court is constantly revising death penalty standards of review. For a
discussion of the evolving standards of capital litigation, see Mello, supra note 23, at 53133.
37. Giarratano v. Murray, 668 F. Supp. 511, 513 (E.D. Va. 1986).
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pable of performing the mental functions necessary to pursue postconviction remedies.3 8 The court concluded that such an inmate
could not adequately pursue claims because the looming presence of
possible death was too distracting.3 9
The district court next examined Virginia's existing alternate legal
assistance program.'
Pursuant to the Virginia code, institutional
attorneys were assigned to prisons to assist inmates in matters associated with incarceration.4" The court held, in regard to death row
inmates, that Virginia's program failed to provide meaningful access
to the courts.4 2 Judge Mehrige based his conclusions on evidence
presented at trial, indicating there were only seven part-time attorneys
handling the legal questions of more than 2,000 non-capital prisoners.43 The court noted that the role of these attorneys was primarily
advisory, and, at best, they could handle only one capital case at a
time.' Judge Mehrige found that these lawyers did not meet the
needs of capital inmates seeking life dependent post-conviction
proceedings.4 5 Consequently, the district court concluded that the
continuous assistance of counsel was necessary to effectuate the right
of meaningful access to the courts in capital post-conviction
proceedings.4 6
38. Id.
39. Id. The court noted that at the time when a death row inmate must rapidly perform
the complex and difficult work necessary to file a timely petition, he is painfully distracted.
The court further noted that few people can simultaneously prepare to die and direct
litigation intended to permit them to live because the two efforts require entirely different
mindsets. Id.
40. Id. at 514.
41. VA. CODE ANN. § 14.1-183 (1989). In addition, Virginia's code provided for a
procedural assignment of counsel to inmates who, on their own, are initially able to file a
non-frivolous petition. The court, however, found that the procedural appointment of
counsel did not meet the Bounds standard of meaningful access because appointment would
not occur in the critical stages of a petitioner's claim. Giarratano,668 F. Supp. at 515.
42. Giarratano,668 F. Supp. at 514. The judge noted that the appointed attorneys were
not full-time and could at best handle only a single capital case at a time. Id.
43. The average time the institutional attorneys spent with an inmate was almost always
less than an hour. Additionally, the attorneys had no regularly scheduled visits and often
waited for prisoners' requests to accumulate before taking action. Trial Transcript at 224,
Giarratano v. Murray, 668 F. Supp. 511 (E.D. Va. 1986) (No. 85-0655).
44. Giarratano,668 F. Supp. at 514.
45. Id. at 515.
46. Id. at 517. The court ordered Virginia to develop a program whereby counsel would
be appointed upon request for death row inmates who could not afford to retain an attorney
and who would not have counsel to represent them in connection with pursuing habeas
corpus relief in state court. Id.
MURRAY v. GIARRA TANO
1991]
B.
The Court of Appeal's Opinion
The Court of Appeals for the Fourth Circuit 4 7 reversed the district
court's order requiring Virginia to appoint attorneys for death row
inmates pursuing post-conviction remedies.4 8 Judge Wilkins, writing
for the majority, stated that the district court's finding, that Virginia's
program designed to assist death row inmates did not provide them
with meaningful access to the courts, was clearly erroneous. 49 The
appeals court also found that the district court had abused its discretion in ordering a remedy as extreme as mandatory appointment of
counsel.5 0 The court held that the right to the appointment of counsel
was constitutionally inappropriate in post-conviction proceedings."
The majority based its conclusions primarily on three grounds.
1. The District Court's Findings Were Clearly Erroneous
After examining the evidence before the district court, the appellate
majority held that Virginia's prevailing legal assistance program satisfied the Bounds' meaningful access requirement. 2 The court noted
that inmates were furnished, upon request, with copies of briefs, opinions, and transcripts filed in conjunction with lower court proceedings.53 The majority referred to testimony from Giarratano's own
witnesses at trial to prove that these materials could, in fact, be used
by a pro se prisoner.5 4 The court also found that the prison law
library was more than adequate to meet the needs of the inmates. 55 To
support this finding, the majority noted that Joseph Giarratano himself had been successful on two pro se actions. 56 Finally, the court
47.
48.
49.
50.
Giarratano v. Murray, 836 F.2d 1421 (4th Cir. 1988).
Giarratano,836 F.2d at 1428.
Id. at 1423.
Id.
51. Id.
52. Giarratano v. Murray, 836 F.2d 1421, 1423 (4th Cir. 1988). The court characterized
the district court's reading of the record, which supported a "sweeping extension" of
Bounds, as a guise to establish a right of counsel where none is required by the
Constitution. Id.
53. Id.
54. Id. Additionally, the court found that the evidence presented did not indicate that
Virginia death row prisoners had only limited time to prepare and present their issues. The
court noted that a substantial amount of time had passed between the affirmance of
Giarratano's conviction by the Virginia Supreme Court and the initiation of federal postconviction proceedings. The court noted that Giarratano himself had been on death row in
Virginia for seven years. Id.
55. Giarratano,836 F.2d at 1423.
56. Id. The appellate court further held that the record also failed to establish that there
is a unique complexity to death pending cases. The court noted that the complexity
addressed by the district court referred to factual complexity-the need to evaluate the trial
and sentencing transcripts and to investigate any hints of mistreatment. The appellate
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found that the availability of part-time attorneys
made up for any
7
inadequacies in Virginia's access program.1
2.
The Right to Counsel Precluded in Post-Conviction Actions
To support its conclusion that the right to counsel is precluded in
post-conviction proceedings, the appellate majority relied on the
Supreme Court decision of Pennsylvania v. Finley.58 In Finley, the
Supreme Court concluded that there is no constitutional right to counsel for non-capital post-conviction proceedings. 9 Finley presented the
issue of whether the procedures for attorneys seeking to withdraw
from a frivolous appeal, as articulated in Anders v. California," were
constitutionally mandated in state post-conviction proceedings. Resolution of that issue required a determination of the constitutional basis
for providing counsel in such proceedings:
Anders established a prophylactic framework that is relevant...
only when, a litigant has a previously established constitutional
right to counsel. We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks to their
convictions, and we decline to so hold today. Our cases establish
that the right to appointed counsel extends to the first appeal of
right and no further. 6 '
In holding there is no right to counsel in post-conviction proceedings, the Court noted that post-conviction relief was even further
removed from the trial stage than the first right of appeal or discretionary appeals. 62 The Finley Court noted that post-conviction proceedings were collateral attacks that normally occur only after the
defendant has failed to secure relief through direct review of his conviction. 63 The Court concluded that states have no obligation to procourt found that factual complexity obscures the fact that the standards for assessing the
fairness of a capital prosecution are the same for non-capital cases. The court also stated
that the purpose of the right to counsel is not to provide a defendant with a private
investigator. Id.
57. Id. The court noted that even if the law library alone was insufficient, the
availability of the part-time institutional attorneys satisfied the second prong of the Bounds
obligation - the provision of legal assistance. Id.
58. 481 U.S. 551 (1987).
59. Finley, 481 U.S. at 559.
60. 386 U.S. 738 (1967).
61. Finley, 481 U.S. at 555. The Court noted that there is a significant difference
between the role of counsel on appeal and at trial. While a state may not dispense with the
right to counsel at trial proceedings, the Court claimed that a state is not obliged to provide
counsel at every stage of the appellate level. See also Ross v. Moffit, 417 U.S. 600, 610-11
(1974).
62. Id.
63. Giarratano v. Murray, 836 F.2d 1421, 1424 (4th Cir. 1988).
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MURRAY v. GIARRA TANO
vide this discretionary relief, and if they do, fundamental fairness
mandated by the due process clause does not require that the state
supply a lawyer as wellf"
The appellate court likened the respondent's claim to that in Finley,
a right to counsel in post-conviction proceedings. The fact that Giarratanowas a capital case and Finley was not made no difference in the
appellate court's findings. The court held that the rule in Finley
should apply no differently in capital cases than in non-capital cases.6 5
3.
Death Row Prisoners are not Entitled to Preferred Status
The appellate court also considered whether, under the eighth
amendment, the nature of the death penalty might entitle a capital
prisoner to the appointment of counsel in post-conviction proceedings.
The court rejected the notion that the eighth amendment requires protection against the unjust infliction of the death penalty.6 6
The court noted the protections provided by the eighth amendment
focused primarily on the procedures by which convicted defendants
are selected for the penalty of death rather than actual punishment
inflicted.6 7 The court thus found that heightened procedural requirements do not apply in the context of post-conviction proceedings. 68
The court concluded that standards by which the death penalty is
imposed provide sufficient protections for the capital defendant.6 9 The
court firmly held that it would not "begin applying a separate panoply
of additional constitutional standards only applicable to collateral
challenges in the death penalty cases." 70
C. The En Banc Opinion
The majority opinion in the appellate court was vacated when the
64. Id. (citation omitted).
65. Id. at 1425.
66. Id. See also U.S. CONST. amend. VIII. "Excessive bail shall not be required, nor
excessive fines be imposed, nor cruel and unusual punishments inflicted." Id.
67. Giarratano v. Murray, 836 F.2d 1421, 1425 (4th Cir. 1986). See also Gregg v.
Georgia, 428 U.S. 153, 206-07 (1976). The significant constitutional difference in the death
penalty mandated the establishment of procedures to ensure that circumstances under
which individual sentences of death are imposed are fair and reliable.
68. Giarratano,836 F.2d at 1425. See also Furman v. Georgia, 408 U.S. 238, 309 (1972).
The sentencing procedures considered were unconstitutional because the death penalty was
by virtue of unguided decision making "so wantonly and so freakishly imposed." Id. at 310.
69. Giarratano v. Murray, 836 F.2d 1421, 1425 (4th Cir. 1986). The majority noted that
in the context of a post-conviction attack, the nature of the death penalty does not demand
heightened procedural requirements in post-conviction review. Id. See also Strickland v.
Washington, 466 U.S. 668, 686-87 (1984) (the same principles govern capital and noncapital cases for ineffective assistance of counsel claims).
70. Giarratano,836 F.2d at 1425.
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Fourth Circuit voted to rehear the case en banc. 71 First, the en banc72
majority held that the district court's findings were not clearly erroneous. Given the complexity of post-conviction litigation, the time constraints, and the emotional pressures of facing an impending death, the
en banc court held, in conformity with the district court, that death
row inmates were incapable of raising pro se post-conviction claims
effectively.73
Second, the en banc majority rejected the appellate court's reliance
on Finley for the contention that prisoners sentenced to death are not
entitled to the appointment of counsel in post-conviction claims.74
The majority stressed that Finley was inapplicable for three reasons:
(1) Finley was not a meaningful access case; 75 (2) Finley did not specifically address the rule of meaningful access in the Bounds context;
and (3) Finley was not a capital case.76 Citing the Supreme Court's
view that matters affecting an already condemned inmate "require no
less stringent standards than those demanded in any other aspect
of a capital proceeding,"' 77 the en banc court held that Finley was
inapplicable.7 8
D. The Supreme Court Opinion
The Supreme Court overturned the district and the en banc courts
in Giarratano. In its decision, the Court held that death row inmates
seeking post-conviction relief have no constitutional right to the
appointment of counsel. 79 The Court acknowledged that Bounds reaffirmed that inmates have a fundamental right of access to the courts.8 0
The majority, however, held that a state's obligation to protect that
right is limited.8 1 The Court concluded that under no circumstance
does meaningfull access require that a state provide capital inmates
71. Giarratano v. Murray, 847 F.2d 1118 (4th Cir. 1988) (en bane).
72. "En banc" refers to a session where the entire membership of the court will
participate in the decision rather than the regular quorum.
BLACK'S LAW DICTIONARY
472-73 (5th ed. 1979).
73. Giarratano,847 F.2d at 1120-21. The en banc court reiterated the three factors
(time constraints, emotional pressure and legal complexity) Judge Mehrige had deemed
critical to the decision that the degree of legal assistance afforded to death row inmates in
Virginia failed to satisfy the Bounds requirement of meaningful access.
74. Giarratano,847 F.2d at 1122.
75. Id.
76. Id.
77. Ford v. Wainwright, 477 U.S. 399, 411-12 (1986).
78. Giarratano v. Murray, 847 F.2d 1118, 1122 (4th Cir. 1988) (en banc).
79. Murray v. Giarratano, 109 S. Ct. 2765 (1989).
80. Id. at 2771.
81. Id. at 2771-72.
MURRAY v. GIARRA TANO
1991]
with counsel.8 2 The majority refused to make an exception to this
established principle for inmates with death sentences.8 3 The Court
concluded that extending the right to counsel to capital post-conviction proceedings for the purpose of meaningful access would create a
new right to
counsel.8 4 No such right is provided by the
85
Constitution.
The Supreme Court's holding in Giarratanois inconsistent with its
treatment of a prisoner's fundamental right of meaningful access to
the courts. In order to obtain meaningful access to the courts, a right
the Court constitutionally guaranteed through its decision in
Bounds,86 appointed counsel must be made available to capital
inmates. An examination of the Supreme Court's treatment of meaningful access to the courts will further explain this inconsistency.
III.
MEANINGFUL ACCESS FOR DEATH
Row
PRISONERS
The Supreme Court in Giarratanofound that a right to appointed
counsel is precluded in capital post-conviction proceedings. Thus, the
Court overturned the district court's decision which provided counsel
for capital inmates and held that the lower court erroneously interpreted the prisoner's right to meaningful access. This decision is questionable because in order to ensure that capital prisoners have
meaningful access to the courts, a state must be allowed to provide
counsel.
In Bounds v. Smith, the Supreme Court reaffirmed that inmates
have a fundamental constitutional right of meaningful access to the
courts.87 This right requires states to provide all prisoners with adequate law libraries or adequate assistance from lawyers, paralegals or
other persons trained in the law. 8 The Court in Giarratano,however,
concluded that states only have a limited obligation to provide inmates
82. Id. at 2770-71.
83. Id. at 2769.
84. Murray v. Giarratano, 109 S. Ct. 2765, 2770 (1989). "We think that these cases
require the conclusion that the rule of Pennsylvania v. Finley [no right to counsel in noncapital post conviction proceedings] should apply no differently in capital cases than in
non-capital cases." Id.
85. Id. The Court noted that Bounds "required a state to furnish access to adequate law
libraries in order that prisoners might prepare petitions for judicial relief." Id. at 2771.
However, the Court claimed that "it would be a strange jurisprudence that permitted the
extension of that holding to partially overrule a subsequently decided case such as Finley,
which held that prisoners seeking judicial relief from their sentences in state proceedings
were not entitled to counsel." Id.
86. The Court in Bounds held that a fundamental constitutional right of access to the
courts had been established beyond doubt. Bounds v. Smith, 430 U.S. -817, 821 (1977).
87. Id. at 828.
88. Id.
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with assistance.8 9 The Court held that states can provide a number of
protective remedies: for example, a law library or assistance from a
paralegal.90 Yet, the Court firmly held that states can never be
required to provide a lawyer to a capital inmate. 9 1
The Supreme Court has never, nor any other court construing
Bounds, embraced such a narrow interpretation of meaningful access
to the courts.92 To the contrary, Bounds and its progeny squarely
reject the Giarratano Court's limited interpretation of meaningful
access. Instead, these cases focus on a case-by-case factual analysis of
whether a state's program designed to render legal assistance
actually
93
does assist prisoners with meaningful access to the courts.
Indeed, the Court in Bounds made it clear that not all types of
94
access (e.g., a law library) ensure meaningful access to the courts.
The Bounds majority recognized that the type and amount of legal
assistance required to provide meaningful access will vary depending
on the inmate and on the nature of the proceeding. The decision mandated an alternative method of required relief in the form of trained
legal assistance or adequate law libraries. 95
The Giarratanodistrict court followed the same factual analysis as
the Supreme Court in addressing the capital prisoner's right to mean89. Murray v. Giarratano, 109 S. Ct. 2765, 2771-72 (1989).
90. Id.
91. Id. at 2770-71.
92. The Third, Fourth, and Fifth Circuits have acknowledged that a library alone, the
minimum requirement under Bounds, may not provide meaningful access. See Valentine v.
Beyer, 850 F.2d 951, 956-57 (3d Cir. 1988) (affirming district court's order prohibiting the
state from closing a paralegal clinic, based on the district court's findings regarding the
assistance provided by the clinic, the inadequacy of the state's proposed plan, and the
special needs of close custody, illiterate, and non-English speaking inmates); Harrington v.
Holshouser, 741 F.2d 66, 69 (4th Cir. 1984) (requiring program of trained paralegals in
addition to law libraries); Cruz v. Hauck, 627 F.2d 710, 721 n.21 (5th Cir. 1980) (holding
that library books, even if adequate in number can not provide meaningful access to the
courts for those persons who do not speak English).
93. See, e.g., King v. Atiyeha, 814 F.2d 565, 568 (9th Cir. 1987) ("There is no
established minimum requirement that a state must meet in order to provide indigent
inmates with adequate access to the courts. Instead, a reviewing court should focus on
whether the individual plaintiff before it has been denied meaningful access."); Cruz v.
Hauck, 627 F.2d 710, 721 n.21 (5th Cir. 1980) (court must look at all the circumstances to
determine whether all inmates have meaningful access to the courts).
94. Specifically, the Court identified two cases where it had held that, despite the
existence of presumably adequate law libraries, certain classes of inmates were deprived
access to the courts. Bounds v. Smith, 430 U.S. 817, 824 nn.10 & 11 (citing Wolf v.
McDonnell, 418 U.S. 539 (1974) (granting relief even though "there was already an
adequate law library in the prison") and Procunier v. Martinez, 416 U.S. 396 (1974)
(granting relief "even though California has prison law libraries")).
95. Bounds v. Smith, 430 U.S. 817, 832 (1977).
1991]
MURRAY v. GIARRA TANO
ingful access to the courts.96 The district court first examined
whether, in light of the critical nature of capital post-conviction proceedings, death row inmates were capable of using the prison law
library.97 The district court also focused on the tasks facing condemned inmates in such proceedings and the limitation affecting their
ability to perform those tasks.9 8 The district court majority found that
the work necessary for filing and litigating capital post-conviction petitions required extensive factual investigation, identification and
research of many substantive claims, and negotiation of complex procedural obstacles.9 9 In light of the fact that an inmate's preparation of
his/her own capital case is extremely stressful, the district court found
that these circumstances disable capital inmates from pursuing pro se
proceedings.) °
Continuing with the Bounds factual analytical approach, the district
court then reviewed Virginia's provision of assistance to capital
inmates from persons trained in the law. The majority found that Virginia's part-time institutional attorneys still did not assure capital
inmates meaningful access. The court concluded that death row postconviction proceedings were too important
to leave to "what is at best
10 1
a patchwork system of assistance."
Thus, the district court modeled the analysis after the one set forth
by the United States Supreme Court in Bounds. In evaluating the
nature of the proceeding and the actual capabilities of the inmates, the
district court focused, as required by Bounds,
on whether death row
10 2
inmates in fact received meaningful access.
Indeed, the Bounds Court noted that prisoners who file "original
actions seeking new trials, release from confinement, or vindication of
fundamental civil rights," need more assistance in obtaining meaningful access to the courts than prisoners merely asking a court to review
lower court proceedings. 103 The majority in Bounds further noted that
such proceedings were the "first line of defense against constitutional
violations," and required additional legal assistance because of their
96. Giarratano v. Murray, 668 F. Supp. 511, 513-14 (E.D. Va. 1986).
97. Id. See supra text accompanying notes 27-34.
98. See supra notes 27-34 and accompanying text.
99. See supra notes 27-34 and accompanying text.
100. Giarratano v. Murray, 668 F. Supp. 511, 513 (E.D. Va. 1986). "[P]Iaintiffs are
incapable of effectively using law books to raise their claims. Consequently, the provision
of a library does little to satisfy Virginia's obligation to 'assist inmates in the preparation
and filing of meaningful legal papers."' Id.
101. Id. at 515. See supra notes 37-38 and accompanying text.
102. Giarratano,668 F. Supp. at 511.
103. Bounds v. Smith, 430 U.S. 817, 827 (1977).
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"fundamental importance."'"
Post-conviction proceedings in capital cases, however, are more
than "first lines of defense" against constitutional violations; they are
also the last. The outcome of capital post-conviction proceedings
determines whether a prisoner will live or die. Capital post-conviction
proceedings demand a heightened level of legal assistance. Accordingly, the district court in Giarratanofound that "[t]he stakes are simply too high" to allow a prisoner sentenced to death minimal court
access. 105
Perhaps the Supreme Court's dissatisfaction with the district court's
decision is not in the application of the Bounds principle, but rather in
the remedy. The majority contends that a court may never devise a
remedy for access to the courts that requires a state to develop a system for providing legal assistance in the form of lawyers." 6
Courts construing Bounds, however, have not adopted such a rigid
view. 1 7 These courts have recognized certain classes of inmates
whose special circumstances require that they receive more than the
minimum assistance permitted by Bounds. °8 Indeed, the Bounds
decision specifically distinguished the access rights of ignorant and
illiterate inmates (unable to present their own claims in writing to the
court) from those inmates able to present their own cases. 10 9 The
majority in Bounds noted that a law library alone is not sufficient to
104. Id. In requiring legal assistance in Bounds, the Supreme Court also considered the
fact that habeas proceedings frequently raise unlitigated issues that have not or could not
have been addressed at trial on first appeal. See also Kimmelman v. Morrison, 477 U.S.
365, 378 (1986) (asserting claim of ineffective assistance of trial counsel in post-conviction
proceedings is frequently the only means through which an accused can effectuate the right
to counsel and is the only means of enforcing the right to effective assistance of appellate
counsel).
105. Giarratano v. Murray, 668 F. Supp. 511, 514-15 (E.D. Va. 1986).
106. Murray v. Giarratano, 109 S. Ct. 2765, 2769 (1989).
107. See Cody v. Hillard, 599 F. Supp. 1025, 1061 (D. S.D. 1984) (requiring "lawtrained assistance in addition to a law library"); Kendrick v. Bland, 586 F. Supp. 1536,
1551 (W.D. Ky. 1984) (law libraries alone "[do] not provide the minimum necessary legal
resources"); Wade v. Kane, 448 F. Supp. 678, 684 (E.D. Pa. 1978), aff'd mem., 591 F.2d
1338 (3d Cir. 1979) ("[I]t is obvious that a prison library, even where it is adequate, is
insufficient to provide [adequate] access for inmates who are illiterate or otherwise unable
to do effective legal research.").
108. See Hadix v. Johnson, 694 F. Supp. 259, 288-89 (E.D. Mich. 1988) (requiring
prison legal services program for illiterate inmates and those in segregation); Knopp v.
Johnson, 665 F. Supp. 871, 882 (W.D. Mich. 1987) (illiterate inmates not provided with
meaningful access by a law library); United States ex reL Para Professional Law Clinic v.
Kane, 656 F. Supp. 1099, 1104-06 (E.D. Pa. 1987) (requiring paralegal clinic in addition to
law library to assist illiterate inmates and those in administrative or disciplinary custody).
109. Bounds v. Smith, 430 U.S. 817, 823-24 (1977).
1991]
MURRAY v. GIARRATANO
provide illiterate inmates meaningful access to the courts."1
In a broad interpretation of Bounds, lower courts have actually
ordered lawyers to assist inmates who might not otherwise receive
meaningful access. For example, the Fourth Circuit, after reviewing a
later proceeding of Bounds, found that the district court appropriately
ordered the remedy of a prison legal counsel program when, after ten
years, the state "was unwilling to implement its library plan consistent
with the minimum constitutional requirements,"1'1 1 and had thus
failed to provide meaningful access to the courts.1 12 The Fourth Circuit majority noted that the requirement of providing legal counsel
"flowed logically from Bounds."11 3 Likewise, if a state's provision for
access to the courts is neither effective nor meaningful for capital prisoners, then requiring a state to provide counsel to the capital inmate
flows logically from Bounds.114
Nevertheless, the Supreme Court in Giarratanocontends that Finley
precludes appointed counsel in the post-conviction context.1 15 The
Supreme Court, however, has failed to recognize that Finley does not
address whether the provision of counsel in post-conviction representation would, in every context, be an impermissible remedy. As the
Fourth Circuit Court of Appeals noted, nothing in Finley suggests that
the Supreme Court intended to limit the relief provided
by a district
116
court when attempting to ensure meaningful access.
Furthermore, the Supreme Court did not mention the Bounds rule
of meaningful access in Finley. Had the Court intended to have the far
ranging preclusiveness it now suggests, it would seem certain that the
Court would have addressed the Bounds decision in Finley.
Finally, interpreting Finley to limit the meaningful access remedies
that Bounds mandates creates an enormous anomaly. The Finley rule
only affects post-conviction proceedings, while Bounds mandates an
across-the-board right to access to the courts. Today, under Giarratano, a court could allow a state's voluntary remedy of counsel to
assist prisoners in drafting wills or filing divorce papers. Yet, Finley
110. Id.
111. Smith v. Bounds, 813 F.2d 1299, 1302 (4th Cir. 1987), opinion adopted en banc,
841 F.2d 77 (4th Cir. 1988), cerL denied, 109 S. Ct. 176 (1988).
112. Id.
113. Bounds, 813 F.2d at 1302.
114. The Third Circuit similarly concluded that, for death row inmates in postconviction proceedings, meaningful access may call for the provision of counsel. Peterkin
v. Jeffes, 855 F.2d 1021 (3d Cir. 1988). The court noted that Bounds did not suggest that
the right of access to the courts is always measured by a single standard irrespective of the
nature of the proceedings. The court also noted that it may be that the scope of access to
legal resources required under Bounds varies according to the proceedings. Id. at 1047.
115. See supra note 58 and accompanying text.
116. Giarratano v. Murray, 847 F.2d 1118, 1122 (4th Cir. 1989) (en bane).
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[Vol. 17:1
precluded the same court from finding lawyers necessary to obtain a
stay of execution. 1 '7
IV.
THE RIGHT TO COUNSEL IN POST-CONVICTION PROCEEDINGS
The sixth amendment right to be represented at trial by counsel is a
fundamental right of all criminal defendants; 118 it assures fairness and
legitimacy in our adversary process." 9 Indeed, "[t]he very premise of
our adversary system of criminal justice is that partisan advocacy on
both sides of a case will best promote the ultimate objective that the
guilty be convicted and the innocent go free." 2 ° In a criminal proceeding, the defendant's liberty (and perhaps life) depends upon the
ability to confront the "intricacies of the law and the advocacy of the
public prosecutor."''
Absent representation, however, it is unlikely that a criminal
defendant will be able to contest the government's case effectively. As
Justice Sutherland of the United States Supreme Court wrote in Powell
v. Alabama,'2 2 "[e]ven the intelligent and educated layman has small
and sometimes no skill in the science of law."' 23 Thus, a criminal trial
is not conducted in accordance with fundamental fairness unless the
24
defendant has counsel.'
The commitment to the adversary process is equally crucial during
the appeal of a criminal conviction as it is at the trial level. Accordingly, the Supreme Court held in Griffin v. Illinois that the fourteenth
117. Brief in Opposition to Petition for Writ of Certiorari at 26 n.12, Giarratano v.
Murray, 847 F.2d 1118 (4th Cir. 1989) (No. 88-411).
118. U.S. CONST. amend. VI. ("In all criminal prosecutions, the accused shall enjoy...
the Assistance of Counsel for his defence.").
119. See Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon extended the right of
counsel from only capital felony trials to all state felony trials. The Court in Gideon
decided that it shocks the fundamental sense of justice to let a defendant go into any felony
trial without a lawyer. Id. at 344.
120. Herring v. New York, 422 U.S. 853, 862 (1975). See also Gideon v. Wainwright,
372 U.S. 335 (1963). Gideon stated that the right to counsel is fundamental because of the
adversarial process. The Supreme Court noted that the government always hires lawyers to
prosecute its cases. In addition, the Court also noted that a defendant who has the money
usually hires an attorney to assist in the defense of his case. The Court claimed that these
facts are strong indications of the belief that "lawyers in the criminal courts are necessities,
not luxuries." Id. at 344.
121. United States v. Ash, 413 U.S. 300, 309 (1973).
122. 287 U.S. 45 (1932).
123. Powell, 287 U.S. at 69. Powell had established the right to counsel in capital trials
thirty years before Gideon extended the right to all felony trials. Powell did not explicitly
create a right to counsel in all capital cases, but only in those capital cases in which the
defendant was incapable of making his own defense because of, for example, ignorance or
illiteracy.
124. Gideon, 372 U.S. at 345.
1991]
MURRAY v. GIARRA TANO
amendment guarantees a criminal appellant pursuing a first appeal
certain minimum protections.' 25 The Court in Douglas v. California'2 6 stated that these safeguards include the right to counsel.1 27
These decisions show that the Court has a genuine interest in assuring
that criminal defendants are adequately represented throughout all
stages of criminal proceedings. Indeed, in a recent case, the Court
reaffirmed its decision in Douglas and commented at length about the
necessity of counsel in trial and appellate proceedings. 128 To prosecute an appeal, the Court has stated that "a criminal appellant must
face an adversary proceeding that, like a trial, is governed by intricate
rules that to a lay person would be hopelessly forbidding. An unrepresented appellant-like an unrepresented
defendant at trial-is unable
12 9
to protect the vital interests at stake.'
The Court, however, has recently drawn the line in affording advocacy protections to criminal defendants. 30 In Finley, the Court
refused to extend the right to counsel to non-capital post-conviction
proceedings; in Giarratano,the Court also refused to extend this right
to capital post-conviction proceedings. The Court, however, has failed
to recognize that due process and fundamental fairness require
the continuance of advocacy protections in capital post-conviction
proceedings.
At the crux of this fairness argument is the risk of erroneous deprivation of liberty. In the case of a capital inmate, this risk is even more
125. Griffin v. Illinois, 351 U.S. 12, 20 (1956). In Griffin, the Court held that a state may
not grant appellate review in a way which discriminates against some convicted defendants
on account of their poverty. In so holding, the Court claimed that indigents had a right to
a free transcript of the trial. The Court noted that the transcripts were necessary in order
to receive adequate appellate review. Id. at 16.
126. 372 U.S. 353 (1963).
127. See also Gideon, 372 U.S. at 335. In Douglas, petitioners had been denied court
appointed counsel for their appeals of first right. Douglas v. California, 372 U.S. 353, 355
(1963). Justice Douglas, writing for the majority, stated that denial of counsel on appeal
was the same type of intolerable discrimination found in Griffin, discrimination against the
indigent. Id. "For there can be no equal justice where the kind of an appeal a man enjoys
depends on the amount of money he has." Id. at 355 (quoting Griffin v. Illinois, 351 U.S.
12, 19 (1956)). The Court in Douglas thus guaranteed counsel for the first appeal as of
right. Douglas, 372 U.S. 353, 356 (1963).
128. Penson v. Ohio, 109 S.Ct. 346 (1988). The Court noted that the need for effective
advocacy does not end as the legal proceedings move from trial to appellate stages of a
criminal prosecution. Furthermore, the Court noted that the trial and appellate stage of
prosecution require careful advocacy to ensure that rights are not foregone and that
substantial legal and factual arguments are not passed over. Id. at 352.
129. Penson, 109 S. Ct. at 352 (quoting Evritts v. Lucey, 469 U.S. 387, 396 (1985)).
130. Ross v. Moffitt, 417 U.S. 600 (1974). See also supra notes 57-60-and accompanying
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 17:1
significant since the liberty at stake is the preservation of life.'
The
risk of an erroneous execution is intolerable when the appointment of
32
counsel would enhance the reliability of a conviction and sentence.
The insistence of a rigorous and fair adversary process has been a
consistent theme in the Supreme Court's death penalty decisions.
"This special concern is a natural consequence of the knowledge that
executions are the most irremediable and unfathomable of penalties
...
133 Moreover, long before the Supreme Court established the
right to counsel in all felony cases, 134 it recognized the right in capital
cases. 135
To determine whether due process and fundamental fairness require
the appointment of counsel, the Supreme Court has developed an analytical test.' 36 The three elements to be weighed are: (1) the private
interest at stake in a case without counsel; (2) the governmental interest involved; and (3) the37 risk of erroneous deprivation of liberty if
counsel is not provided. 1
Application of this test to capital inmates pursuing post-conviction
proceedings demonstrates that due process requires the appointment
of counsel. First, the private interest involved in a capital inmate's
post-conviction proceeding is life and the avoidance of erroneous loss
of that life. As the Supreme Court wrote in Ake v. Oklahoma,13 8 in
considering whether fundamental fairness requires the appointment of
an expert witness in a capital case, "[t]he private interest in the accuracy of a criminal proceeding that places
an individual's life or liberty
' 39
at risk is almost uniquely compelling."'
131. See Lockett v. Ohio, 438 U.S. 586 (1978).
132. Id. Cf. Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (weighing the probative value of
procedural safeguards against the risk of an erroneous deprivation of life if those safeguards
are not provided); Beck v. Alabama, 447 U.S. 625, 637-38, 643 (1980) (assessing the risk of
erroneous conviction relative to enhanced reliability resulting from additional procedural
safeguards).
133. Ford v. Wainwright, 477 U.S. 399, 411 (1986). See also Woodson v. North
Carolina, 428 U.S. 280, 305 (1976) (the Court held that the penalty of death differs
qualitatively from the sentence of imprisonment, however long).
134. Gideon v. Wainwright, 372 U.S. 335 (1963).
135. Powell v. Alabama, 287 U.S. 45 (1932).
136. Lassiter v. Dep't of Soc. Serv., 452 U.S. 18, 25-27 (1981).
137. Id. at 27-32. With regard to what the "fundamental fairness" requirement of the
due process clause means concerning the right to counsel, there is a presumption that an
indigent litigant has a right to appointed counsel only when he may be deprived of his
physical liberty. Other elements of the due process decision - the private interest at stake,
the government's interest and the risk that the procedures will lead to erroneous decisions
- must be weighed against the presumption of fairness. Id. See also Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
138. Ake v. Oklahoma, 470 U.S. 68 (1985).
139. Id. at 78.
1991]
MURRAY v. GIARRATANO
Second, the governmental interest, to a significant degree, overlaps
that of the individual. "The state too, has a profound interest in assuring that its ultimate sanction is not erroneously imposed." 1"
Third, the risk that there will be an erroneous deprivation of liberty
is substantial in the absence of counsel, as this risk may result in erroneous executions. If the prisoner loses his post-conviction proceeding,
he will suffer the ultimate loss of physical liberty-death.
In the case of death row prisoners pursuing post-conviction proceedings, when (1) the proceedings involved will be the final determinations of whether an inmate lives or dies, (2) the individual and the
government's interest is in the avoidance of an erroneous loss of life,
and (3) the risk of error is intolerably high, due process requires that
the right of counsel be extended to prisoners seeking post-conviction
relief. As Chief Justice Burger wrote: "The individual [capital inmate]
should not be asked to share equally with society the risk of error
when the possible injury' 14to1 the individual is significantly greater than
any harm to the states."
V.
CONCLUSION
The Supreme Court's decision to preclude a capital post-conviction
right to counsel is inconsistent with its treatment of the fundamental
right to meaningful access to the courts. A state must be allowed to
implement the provision of counsel in order to ensure that capital prisoners have meaningful access to the courts. Further, there is a compelling due process argument mandating that the right to counsel be
extended to include post-conviction proceedings. At the crux of the
argument are the risk of an erroneous loss of life and the continuance
of advocacy protections for the capital defendant.
Post-conviction proceedings have become an important mechanism
that ensures both reliability in a capital trial and proper imposition of
the death penalty. 42 The post-conviction system often reveals injustices not detected in the earlier criminal justice process. Post-conviction proceedings can provide procedural mechanisms for raising
claims which were not raised in earlier proceedings. 4 3 Without
meaningful capital post-conviction proceedings, society runs a substantial risk of killing innocent people-a risk that cannot be
140. Id. at 83-84.
141. Addington v. Texas, 441 U.S. 418, 427 (1979).
142. See, e.g., McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (finding that issues
which were raised or could have been raised on direct appeal cannot be re-litigated in state
post-conviction proceedings); Atkinson v. United States, 366 A.2d 450, 452-53 (D.C. 1976)
(same).
143. See Mello, supra note 23, at 521.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 17:1
tolerated. '
In addition, in modem society, executing an unrepresented person
goes beyond the bounds of decency. In the past, the Supreme Court
has looked to the "evolving standards of decency" in determining
whether a particular punishment comports with the fundamental
human dignity required by the eighth amendment. 145 The reaction of
the state and federal government to the growing demand for post-conviction representation is strong evidence that contemporary values and
"evolving standards of decency" require that capital punishment not
be imposed without the provision of counsel. This applies in all stages
of capital trials, including post-conviction review.14 6 A national consensus has recognized that post-conviction proceedings ensures the
reliability of capital trials.14 7 An integral part of this safeguard
is the
48
appointment of counsel to represent the capital inmate.
144. A failure to provide counsel for capital post-conviction proceedings also violates the
sixth amendment by interfering with an individual's ability in post-conviction proceedings
to enforce his right to effective assistance of counsel at trial and on appeal. The Supreme
Court has noted that assessing a claim of ineffective assistance of counsel in a postconviction proceeding is often the only means through which an accused can effectuate that
right. Furthermore, post-conviction proceedings are the only means of enforcing the right
to effective assistance of appellate counsel. See Kimmelman v. Morrison, 477 U.S. 365, 378
(1986). See also Strickland v. Washington, 466 U.S. 668 (1984) (the Court found that the
sixth amendment guarantees a criminal defendant the right to effective assistance of
counsel).
145. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). "The [Eighth]
Amendment must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society." Id.
146. An argument can be made, based on the eighth amendment and the unique nature
of the death penalty, that capital, post-conviction representation is required. See U.S.
CONST. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted."). The Court's modem death penalty
jurisprudence stresses the need for a greater reliability when the death sentence is imposed.
See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (in restating the modem penalty, the Court
emphasized that the death penalty is profoundly different than all other penalties). This
sentiment is driven by the finality of death. The powerful condemnatory purpose of death,
which makes capital punishment unique, removes death from the usual method of
punishment. See Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring).
The Court's modem view of capital cases reflects the need to increase the accuracy of
criminal procedures when death is a possible outcome. The concern for accuracy and the
harshness of the death penalty are factors that have made capital post-conviction
proceedings so complex, such that a pro se prisoner cannot handle such proceedings
without the assistance of counsel.
147. "You Don't Have to be a Bleeding Heart," Representing Death Row: A Dialogue
Between Judge Abner J. Mikva and Judge John C. Godbold, 14 HUM. RTs. 22 (1987). See
also Amsterdam, In Favorem Mortis, 14 HuM. RTs. 13 (1987).
148. Habeas Corpus Appeals of State Death Sentence Cases, Pub. L. No. 100-690,
§ 7001, 102 Stat. 4181 (1988). Congress has determined that counsel is required in all
federal habeas cases involving the death penalty in federal court, and that trial attorneys
1991]
MURRAY v. GIARRATANO
Furthermore, many professional organizations agree that leaving
death row prisoners unrepresented offends the notion of fairness.14 9
The American Bar Association approved resolutions in 1979, calling
for the appointment of counsel for capital post-conviction litigation
and, in 1982, for the appointment of counsel for prisoners in general. 150 The provision of counsel for death row inmates is more than
just a good idea; it is a safeguard our society has come to regard as
required by common devices.
DENISE
G. BRODSKY
appointed by the court must have at least five years experience practicing as a member of
the local bar and must have at least three years experience handling felony appeals.
149. See Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (noting the views of the
American Bar Association and the American Law Institute on the minimum age for
execution).
150. Proceedingsof the 1979 Midyear Meeting of the House of Delegates, 104 ANNUAL
REPORT OF THE A.B.A. 245 (1979); Proceedingsof the 1982 Annual Meeting of the House
of Delegates, 107 ANNUAL REPORT OF THE A.B.A. ANNUAL 666 (1982).