The Impact of Inadequate Representation on Death Row

By: Anna Dellit

Edited by: Rayyana Hassan and Renan Dennig

The death penalty is most commonly discussed as a moral debate, and the right of the government to take a human being’s life. However, another element to be considered is the lack of procedural justice and structure in the court system for those unable to represent themselves effectively considering the labyrinth-like structure of the law and the courts. In accordance with the Sixth Amendment, all criminal defendants are guaranteed access to a defense attorney. However, the Sixth Amendment does not guarantee the qualification level of the defendant’s legal team, even for death penalty cases, resulting in discrimination based on racial, socioeconomic, and mental differences.

The case of Walter “Johnny D'' McMillian exemplifies the effects of neglected procedure and racial inequity within the system. Mr. McMillian was born and raised in a majority-Black settlement on the outskirts of Monroeville, Alabama. After the death of a young white woman, Ronda Morrison, in 1986, Monroeville detectives arrested a Black man by the name of Walter McMillian. A local law enforcement officer, Sheriff Tate, stopped Mr. McMillian on the road, accused him of the murder, and promptly confined him to a cell on death row for 15 months prior to his trial. The jury then deemed Mr. McMillian guilty of capital murder, even with dozens of members of his community willing to testify to his whereabouts at the time the crime occurred. Due to a mix of witness perjury, falsified information, coercion of witnesses by law enforcement, and inadequate support for his legal team, Mr. McMillian served an additional six years for a crime he did not commit, witnessed seven executions, developed early onset dementia, and remains traumatized by his experience. Mr. Mcmillian’s conviction was overturned by the Alabama Court of Criminal Appeals in 1993 with the help of the Equal Justice Initiative. Still, Sheriff Tate, who did not act in accordance with legal procedure, was granted immunity and retired decades later in 2019.[1] While Mr. McMillan was exonerated, meaning absolved from their blame or previous convicted crime, he lost years of his life and still faces serious health ramifications. In response to the increasing rate of exonerations of death penalty sentencing, the legal system needs to reform its careless treatment of death row cases, as preventative action is the only way to save the innocent from a corrupt system. 

Since 1989, with the start of the Equal Justice Initiative, there have been over 2,500 exonerations throughout the entire legal system, 367 of them being exonerated through existing DNA evidence.[2] Unfortunately, illegal and unprofessional behavior by attorneys and officials of the law, exemplified in the case of Walter McMillian, is common. In the case of Mississippi citizen Curtis Flower, the prosecutor was found to have intentionally stricken Black jurors from the panel to create an all-white jury.[3]

The current public defender infrastructure lacks incentive and the foundation to fully represent the accused due to the overwhelming number of cases assigned to competent lawyers. Public defenders lack the motivation to win when the government and court system encourage fast-moving cases. For example, the Texas Defender Service found that judges often appoint defense attorneys based on reputation for speed rather than competency or experience.[4] Late Supreme Court Justice Ruth Bader Ginsberg corroborates this claim, asserting, "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.”[4] This detrimental issue of inadequate representation also manifests itself in a defendant facing the alarming possibility of only meeting in person with their attorneys once or twice briefly before entering the trial. This was the reality in the case of Landon Quinn, a Black man convicted in New Orleans of robbery and murder in 2011. While there was no forensic evidence linking him to the case, the conviction was based on cross-racial eyewitness identification and resulted in a life sentence. He was granted the legal minimum of two defense attorneys, but both lawyers each had over 500 other felony cases and an additional critical death penalty case to manage simultaneously. This directly violates the recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, which state that public defense attorneys are to take a maximum of 150 cases per year.[5] Furthermore, without proper funding for public defense attorneys, many death row cases are put on hold or indicted without ever being given a proper defense team. This is a “warning that the chronic underfunding of public defense was causing unmanageable caseloads to the point of abrogating the Sixth Amendment rights of defendants.''[5] There are a multitude of issues that result in the violation of the Sixth Amendment's intent: underfunding, overworking lawyers, and a lack of attorney competency. Ben Cohen, an attorney for The Promise of Justice Initiative, agrees with the claims and describes the system with an analogy: “Imagine a conveyer belt of [murder cases], and we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.”[6]

The burden of addressing wrongful convictions does not rely solely on the defense attorneys. It can equally be placed on Conviction Integrity Units (CIU), specialized offices within some prosecution or state attorney general offices, that have the goal of preventing and identifying false convictions and evidence, and moreover to hold prosecution teams and law enforcement accountable. Unfortunately, their effectiveness is up for debate. Supporters of the current CIU system believe they add an overall benefit to the community, as seen by leaders of the organization Fair and Just Prosecution urging Kansas City Board of Commissioners to allow the foundation of a CIU office; “victims are safer—and we prevent further victimization—when communities trust that their law enforcement officials seek the truth rather than a ‘win.’ This essential starting point of trust encourages community members to come forward and cooperate when crimes occur. And in cases of actual innocence, communities are clearly safer when we focus on identifying and prosecuting the actual culprit, and when our justice system can recognize and learn from past mistakes.”[7] Furthermore, proponents of CIUs find the offices' independence uninhibited by close connection with fellow prosecutors and law enforcement. Brandon Hamburg, a researcher and analyzer of the effectiveness of post-conviction review units, further elaborates on the importance and efficiency of CIU offices by determining that they have “a much easier time accessing files from prosecutors outside their jurisdiction, in case an innocence claim, for example, involves a similar case in a neighboring county. Prosecutors also enjoy a close working relationship with experienced police officers; these seasoned investigators possess the skills and information networks necessary to investigate claims.”[8] 

However, critics of CIUs claim the offices are merely a device to win public support and are internally dissuaded from seeking real justice. The Equal Justice Initiative found that out of all of the CIU offices, four units account for 85% of all CIU exonerations and CIU offices only secure 40% of all exonerations.[2] To explain this low success rate of the majority of current CIU offices, Josie Duffy Rice, the President of The Appeal, a news publication that publishes original journalism about the criminal justice system, writes that “because CIUs are part of the DA’s office, they are often incentivized to protect their own. Most of these units are staffed by career prosecutors, who are given the task of investigating their colleagues and their superiors — so even when they do identify misconduct, they may be hesitant to accuse those around them of wrongdoing.”[9] Rachel Barkow, a law professor and member of the United States Sentencing Commission, corroborates this assertion. She believes the units function merely to claim pursuit of justice and equity; “For a fair number of offices, they are often no more than cosmetics.”[10]

Even with CIU offices, proper procedure must be followed by appealing a case in hopes of an exoneration verdict. The current legal system fails to address the importance of the appeals process by providing insufficient support to defendants after their conviction. To have a verdict overturned or a retrial given, an appeal must be filed by a defense attorney with new evidence for consideration, meaning the defense lawyer must continue work past conviction and be familiar with the depth of each case. An incompetant original public defense lawyer violates the accused’s constitutional right to effective counsel. According to the California Supreme Court’s automatic appeals monitor, Robert Reichman, out of California’s 600 inmates on death row, over 160 have no lawyers to handle their mandatory direct appeals, and 72 inmates have no new counsel for their habeas corpus petitions, which directly violates the Sixth Amendment.[11] This leads to blockage in the system and directly explains why some inmates from the 1990’s have yet to even start their rightful appeal process. Not only is the system not improving, but Alabama took a step backwards in 2017 with the passage of the Fair Justice Act. Governor Kay Ivey claimed that the bill would expedite the appeal process and continue to be thorough, but Birmingham civil-rights attorney Lisa Borden believes it does the opposite. She asserts that prior to the act, Alabama’s handling of cases usually lacked “detailed investigation” and cutting the time for post-conviction investigation would only create more injustice; “You are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die[...] If Alabama really wants to fix the process [it should] … provide competent representation and resources to people from the beginning.”[12] American Bar Association President Linda Klein further condemns the passage of the bill by stating, “While the ABA respects the importance of finality and judicial efficiency, quicker resolution of cases where a life is at stake should not take priority over ensuring the fundamental fairness and accuracy of those convictions.”[13] 

Opponents of mandatory appeals argue that inmates who waive their rights to due process act of their own accord and have the right to do so. John Blume, Associate Professor of Law at Cornell Law School and director of the Cornell Death Penalty Project, concedes that “[The] decision [is one] that a client is entitled to make for himself, regardless of the opinion of his lawyer.”[14] This belief is the one adopted by the federal legal system by their allowance of “volunteers” on death row. “Volunteers” consist of inmates who willingly waive their right to ordinary appeals or who terminate further proceedings resulting in a definitive date of execution for them. In her research paper about the topic, Kristen M. Dama, lawyer and research expert, continually compares death row “volunteerism” to the act of assisted suicide as she believes both should continue to be legal.[15] To counter this claim, Blume conducted an audit on past volunteers and questioned their mental fitness. Blume found that most inmates had significant histories of mental illness and substance abuse, and “that 39% of [Blume’s] respondents cited hopelessness as a factor in the volunteers’ decision to abandon appeals.”[16] As highlighted by the Equal Justice Initiative, executing people with mental illness is cruel and inhumane, and 75% of all “volunteers” document mental illness.[17] The evidence and outcry amongst experts demonstrate the need for mental competency screenings to be required before an inmate waives their appeals rights to protect the lives of the mentally vulnerable.

The issue of mental competency emerges in the case of Ford v Wainwright when Alvin Ford’s attorneys pleaded he was mentally incompetant. Following the case, the Supreme Court ruled that inmates are not competent to be executed if they are “unaware of the punishment they are about to suffer and why they are to suffer it,”[18] which refers to their competency at the time of execution after years of imprisonment and not at the time of original trial. The Equal Justice Initiative found that approximately 20% of all inmates on death row exhibit significant mental illness, 10% are military veterans with trauma disorders, and out of all the prisoners who have waived their right to due process, 75% have documented mental illness.[17] Moreover, it is not only attorneys who find that the current system completely neglects human rights and dignity. Mental Health America (MHA), a non-profit organization dedicated to protecting and addressing the needs of Americans affected by mental illness, has adopted the stance of a death penalty moratorium until the system is corrected. They assert that “individuals with serious mental illness are threatened and coerced into false confessions, have difficulty understanding their rights, and have less access, because of their mental illness, to safeguards designed to protect fundamental rights, including the right to effective assistance of legal counsel. The criminal justice system’s failure to guarantee due process for people with mental illnesses makes discriminatory application of the death penalty more likely.”[19] Attorneys and the judicial system are not equipped to understand the complexity of the medical field. This leads to the mentally ill being taken advantage of as highlighted by the MHA. Furthermore, many states, unaware of the implications of mental illness, use the vague verdict of “Guilty but Mentally Ill” to account for mental insanity. But MHA found these verdicts do little to protect the rights of the mentally insane and fail to place the mentally ill in equitable, appropriate conditions; “[Guilty but Mentally Ill] verdict provides no benefit to society or to criminal defendants because it has the same consequences as a guilty verdict.[...] Virtually every person found GBMI is sent to prison. Persons found GBMI are entitled to mental health services while imprisoned.”[20] 

Intentionally taking a life requires considerate deliberation, and holds both tremendous responsibility and consequence. This process, if continued, must be meticulous and concrete in its procedure to prevent any infringement upon the rights of the innocent. Of the 2,500 exonerations of death penalty charges or lesser crimes, each person averaged nine years imprisoned for a crime they did not commit.[2] This amounts to roughly 22,500 years lost or over 260 lifetimes. Between overwhelmed public defense attorneys, partial CIU offices, inadequate mental support or evaluations, and unrepresented racial groups positions of legal power, the margin of error is too great to ignore. With the current system, a defendant’s verdict does not solely come down to the most just outcome, but is influenced by outside factors beyond their control. To fail on such a drastic and flagrant scale only furthers the dire need for reform.

Notes:

1. Walter McMillian (Equal Justice Initiative, 2020)

2. Wrongful Convictions (Equal Justice Initiative, 2021) 

3. Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail (Death Penalty Information Center, 2019) 

4. Inadequate Representation (American Civil Liberties Union) 

5. Radley Balko, Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence (The Washington Post, 2019)

6. Eli Hager, Where the Poor Face the Death Penalty without a Lawyer (The Marshall Project, 2017) 

7. The Value and Importance of Conviction Integrity Units (Fair and Just Prosecution, 2018) 

8. Brandon Hamburg, Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units (University of Southern California Gould School of Law, 2016) 

9. Jose D. Rice, Do Conviction Integrity Units Work? (The Appeal, 2018) 

10. Richard A. Oppel and Farah Stockman, Prosecutors Usually Send People to Prison. These Are Getting Them Out (New York Times, 2019) 

11. Crystal N. Hines, Lack of Lawyers Hinders Appeals in Capital Cases (New York Times, 2001) 

12. Alabama Governor Signs Law Shortening Death-Penalty Appeals (Death Penalty Information Center, 2017) 

13. Brian Lyman, Alabama Speeds Death Penalty Appeals Process (2017) 

14. John H. Blume Killing the Willing: “Volunteers,” Suicide and Competency (Cornell Law Library, Cornell Law Faculty Publications, 2004) 

15. Kristen M. Dama, Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death (University of Pennsylvania Law School, 2007) 

16. Meredith M. Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures (Northwestern University School of Law, 2014) 

17. Death Penalty (Equal Justice Initiative, 2021)

18. Shaila Dewan, Does the U.S. Execute People with Mental Illness? It's Complicated (The New York Times, 2017) 

19. Death Penalty and People With Mental Illnesses (Mental Health America 2016) 

20. In Support of the Insanity Defense (Mental Health America, 2019)  

Bibliography:

Balko, Radley. “Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence.” The Washington Post, WP Company, 29 Aug. 2019, http://www.washingtonpost.com/opinions/2019/08/28/how-two-overworked-public-defenders-six-judges-left-new-orleans-man-with-life-sentence/. 

Blume, John H. "Killing the Willing: “Volunteers,” Suicide and Competency." Cornell Law Library, Cornell Law Faculty Publications, 15 Sept. 2004, scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1015&context=lsrp_papers.

Dama, Kristen M. "Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death." University of Pennsylvania Law School, 2007, scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1258&context=jcl.

Death Penalty Information Center. "Alabama Governor Signs Law Shortening Death-Penalty Appeals." DPIC, 30 May 2017, deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeal,deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeals

Dewan, Shaila. “Does the U.S. Execute People with Mental Illness? It's Complicated.” The New York Times. The New York Times, March 21, 2017. https://www.nytimes.com/interactive/2017/us/mental-illness-death-penalty.html. 

Equal Justice Initiative. "Death Penalty." EJI, eji.org/issues/death-penalty/. Accessed 4 Nov. 2021.

Hager, Eli. “Where the Poor Face the Death Penalty without a Lawyer.” The Marshall Project. The Marshall Project, November 29, 2017. http://www.themarshallproject.org/2017/11/28/where-the-poor-face-the-death-penalty-without-a-lawyer. 

Hamburg, Brandon. "Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units." University of Southern California Gould School of Law, 20 Apr. 2016, gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume25/Spring2016/2.Hamburg.pdf.

Hines,Crystal N. "Lack of Lawyers Hinders Appeals in Capital Cases." New York Times, 5 July 2001, www.nytimes.com/2001/07/05/us/lack-of-lawyers-hinders-appeals-in-capital-cases .html.

“Inadequate Representation.” American Civil Liberties Union, http://www.aclu.org/other/inadequate-representation. 

Mental Health America. "Death Penalty and People With Mental Illnesses." Mental Health America, 14 June 2016, www.mhanational.org/issues/position-statement-54-death-penalty-and-people-mental-illnesses.

Mental Health America. "In Support of the Insanity Defense." Mental Health America, 13 June 2019, www.mhanational.org/issues/position-statement-57-support-insanity-defense#_edn1.

 “Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail.” Death Penalty Information Center, 16 Dec. 2019, https://deathpenaltyinfo.org/news/mississippi-judge-frees-curtis-flowers-on-bail-after-six-trials-and-23-years-in-jail. 

Lyman, Brian. "Alabama Speeds Death Penalty Appeals Process." Governing, 31 May 2017, www.governing.com/topics/public-justice-safety/tns-alabama-death-penalty-ivey.html.

Oppel, Richard A., and Farah Stockman. "Prosecutors Usually Send People to Prison. These Are Getting Them Out." New York Times, 28 Nov. 2019, www.nytimes.com/2019/11/28/us/conviction-integrity-unit-innocence.html. 

Rice, Josie D. "Do Conviction Integrity Units Work?" The Appeal, 22 Mar. 2018, theappeal.org/do-conviction-integrity-units-work-a718bbc75bc7/.

Rountree, Meredith M. "Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures." Northwestern University School of Law, 2014, files.deathpenaltyinfo.org/legacy/documents/VolunteersForExecution.pdf.

“The Value and Importance of Conviction Integrity Units ...” Fair and Just Prosecution, August 8, 2018. https://fairandjustprosecution.org/wp-content/uploads/2018/08/KCK-CIU-SIGN-ON-LETTER-FINAL.pdf. 

Walter McMillian, Equal Justice Initiative, 23 Jan. 2020, https://eji.org/cases/walter-mcmillian/. 

“Wrongful Convictions.” Equal Justice Initiative, 23 Feb. 2021, https://eji.org/issues/wrongful-convictions/.