Due Process in State Capital Cases: The Right to Counsel for Indigent Defendants beyond the Initial Appeal as of Right


During the summer of 1976 the United States Supreme Court declared in Gregg v. Georgia that the use of the death penalty as punishment for murder does not, per se, constitute cruel and unusual punishment in violation of the eighth and fourteenth amendments. This pronouncement by the Court resolved the issue left open in Furman v. Georgia, and set the stage for the first execution in the United States in nearly ten years. With over four hundred men and women on death row in this country, and thirty-three states providing for some form of capital punishment, there is potential for the wide-scale resumption of the death penalty.

Gregg and its companion cases have generated a renewed interest in the constitutional rights of the condemned prisoner. A major concern is the scope of the capital defendant’s right to counsel. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right …to have the Assistance of Counsel for his defence.” The Supreme Court, in extending this guarantee to the states through the fourteenth amendment, has required the state to furnish free counsel for indigent criminal defendants at all proceedings up to and including the first appeal as of right. The stages at which the state must provide counsel are: (1) any pretrial but post-indictment lineup; (2) the preliminary hearing to determine the existence of probable cause; (3) any pretrial custodial interrogation; (4) the pretrial arraignment when certain defenses must be pleaded or waived; (5) the entering of a plea of guilty at any time; (6) the trial; (7) the sentencing hearing; and (8) the initial appeal as of right. The Supreme Court, however, has not required states to provide counsel to indigent defendants beyond the first appeal as of right. In Ross v. Moffitt, the Court held that the fourteenth amendment does not guarantee free counsel for indigent defendants preparing petitions either for discretionary review in the highest state court or for certiorari to the United States Supreme Court. Although the Court has not decided the precise issue of counsel for habeas corpus stages, it acknowledged in Johnson v. Avery that states have discretion in such matters.

The Supreme Court did not differentiate in either Ross or Johnson between capital and non-capital cases, which suggests that states might not have to pro-vide counsel even for those upon whom a sentence of death has been imposed. This Note contends that notwithstanding Ross and Johnson, indigent state defendants sentenced to death should be provided counsel up to the point of execution or until commutation of sentence. The specific stages at which appointed counsel is imperative are: (1) the preparation of petitions for discretionary review; (2) the preparation of petitions for certiorari to the United States Supreme Court; and (3) the assertion of state and federal habeas corpus rights. The Supreme Court’s traditional recognition of special due process guarantees for those facing capital punishment, the peculiar plight of the capital prisoner after the initial appeal as of right, and the significant role that an attorney may play during these proceedings compel this extension of the right to counsel.


Suggested Reading

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why