The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

NIU's Northern Exposure
Will the Innocence Protection Act Protect Anyone At All?

By Kelly Reissmann

For some time now, debate has been raging across the country about the administration of the death penalty. Both advocates and opponents of the death penalty question whether capital punishment is being administered fairly. Illinois Governor George Ryan has taken a primary role in that debate by imposing a moratorium on the death penalty throughout the state.1 The moratorium in Illinois, which took effect on January 31, 2000, was desperately needed because of the state’s history of sentencing the innocent to death: since Illinois reinstated the death penalty in 1977, 13 condemned men have either been exonerated altogether or spared capital punishment.2

Many capital cases involve a claim of ineffective assistance of counsel at the trial court level. These claims are largely unsuccessful. Most claims of ineffective assistance in capital cases are dismissed because courts either characterize the alleged errors as “tactical decisions” made by defense attorneys or find the errors to be nonprejudicial. In order to diminish the instances of ineffective assistance of counsel in both state and federal capital cases, the United States Congress is considering legislation known as the Innocence Protection Act (the “Act”).

Though the Act has not yet been passed, one must consider the effect it will have on current death penalty issues. This article explores the standard for ineffective assistance and the provisions of the Act, and suggests additional reform that should be implemented to ensure that each capital defendant is provided with competent representation at trial.

A. The Decision in Strickland v. Washington
The United States Constitution guarantees criminal defendants the right to counsel at trial.3 This right was first recognized in Powell v. Alabama.4 Thirty-eight years later, the United States Supreme Court noted that “the right to counsel is the right to effective assistance of counsel.”5 Strickland v. Washington6 was the first case in which the Court fully articulated the contours of the right to effective assistance of counsel.

In Strickland, the defendant was charged with three counts of capital murder.7 The defendant pled guilty to all charges, against the advice of his attorney.8 In preparation for the sentencing hearing, defense counsel spoke to the defendant’s wife and mother but neglected to seek out any character witnesses.9 Counsel also failed to present a psychiatric report discussing the defendant’s character and mental state.10 Finally, counsel did not order a pre-sentence report.11 Defendant alleged that counsel was ineffective for failing to do those things.

In considering the defendant’s claim, the Court gave short shrift to the fact that the case involved a capital offense. The Court compared the defense attorney’s role in a capital sentencing hearing to his or her role at a non-capital trial, finding that the duty of counsel in both types of cases was “to ensure that the adversarial testing process works to produce a just result under the standards governing [the] decision.”12 Using that rationale, the Court found no distinction between capital and non-capital defendants for the purpose of determining whether counsel was ineffective.13

The Court noted that the representation of a criminal defendant requires basic duties, such as a duty to advocate the defendant’s cause and a duty to bring the skill and knowledge necessary to ensure that the trial is a reliable adversarial testing process.14 More importantly, the Court held that judicial scrutiny of defense counsel’s performance should be highly deferential.15 A strong presumption was created in favor of the finding that counsel’s professional representation was reasonable.16 This reticent stance was due in part to the fact that attorneys must make tactical decisions that best suit the facts and issues of their case.17 As the Court stated, “[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”18

In attempting to formulate a uniform standard to assess counsel’s performance, the Court found that a strict rules-based standard or a checklist-based standard would restrict the latitude counsel must have in making strategic decisions.19 In addition, no set of rules could be comprehensive enough to cover every situation that an attorney may encounter.20

The Strickland Court articulated a two-prong test to determine whether counsel’s representation was ineffective. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the deficient performance prejudiced him or her.21 The second prong requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, that is, a trial whose result is reliable.22

B. Isn’t Death Still “Different?”
Interestingly, Strickland abandoned the Court’s doctrine that “death is different,”23 insofar as the issue of the effectiveness of counsel was concerned. The Court’s “death is different” doctrine recognized that the death penalty is the “ultimate” penalty, as opposed to penalties that involve a period of confinement, no matter how long that period of confinement may be.24 Because the death penalty does not differ only in degree, but, rather, in kind, from other punishments,25 the Court has typically required a higher degree of reliability at trial and in sentencing proceedings in capital cases.26 Further, the irreversibility of the death penalty requires that the fairness of the trial carefully monitored and scrutinized,27 and that the decisions be individualized.28

Though the Court has asserted the “death is different” doctrine since 1972, Strickland does not mention the fundamental differences between capital and non-capital punishments. Because of its history of treating capital and non-capital cases differently, the Strickland Court might have been expected to discuss whether the standard for ineffective counsel and the meaning of “prejudice” in both those types of cases should be the same, and whether the role of counsel in a capital case differs from the guilt phase to the sentencing phase.29 But the Court chose not to adhere to its earlier standard.

C. Ramifications of the Strickland Standard
The Strickland standard for ineffective counsel is almost impossible to meet. The burden rests with the defendant to satisfy both prongs of the test to prove that his or her counsel was ineffective.30 Showing that counsel’s performance was deficient, which is the first prong of the Strickland test, may not cause much difficulty. The prejudice requirement, however, poses great difficulty for defendants asserting a claim of ineffective assistance. The prejudice requirement mandates a showing that trial counsel’s errors were so serious as to deprive the defendant of a fair trial and to undermine confidence in the result of the trial.31 That showing is all the more difficult to make in light of the extreme deference to counsel.32

Proponents of the Strickland standard assert that a difficult standard helps to increase judicial efficiency. By instituting a high standard to establish ineffective assistance, the Court ensured that fewer defendants would bring claims for ineffective counsel, because they would be aware of the difficulty of proving such a proposition. Allowing fewer claims of ineffectiveness would result in increasing judicial efficiency.

The argument that Strickland fosters judicial efficiency loses much of its credibility in the criminal arena. The assertion ignores the rule that in most jurisdictions, criminal defendants, both capital and non-capital, are allowed at least one appeal as of right.33 Indeed, 36 of the 38 states imposing capital punishment in 1999 provided mandatory review of all death sentences.34 Thus, in the vast majority of states, an appeal is automatically allowed and courts are required to review the defendant’s case whether or not it asserts a claim of ineffective assistance. And, though non-capital cases may still be appealed to the state high court seeking relief on the basis of ineffective assistance, judicial efficiency is not compromised because those appeals are not granted as of right and most state supreme courts can choose not to hear a non-capital case. Therefore, in criminal cases, judicial efficiency is not furthered by the stringent Strickland test.

Advocates of the Strickland standard also emphasize the positive effect that a rigid standard has on attorneys. Because of the strict Strickland standard, the argument goes, attorneys have the freedom to make tactical decisions without worrying that their decisions will be found to constitute “ineffective” assistance. Attorneys can base their strategy on the facts before them and the circumstances of their defendant, rather than focusing on whether their decision may, in hindsight, prove to be ineffective assistance.

Although that argument does have some merit, an interesting dilemma is presented: Whose rights should be protected in this situation? The rights of the defendant to a fair trial, or the interests of the attorney in making strategic decisions? It seems that the defendant should garner more protection than the attorney. The capital defendant has a greater interest at stake at his trial – the possible loss of his life. Additionally, because the defendant will, in effect, bear the brunt of the consequences of his lawyer’s errors, the defendant seems to deserve a higher level of protection than his lawyer.

D. The Innocence Protection Act
The United States Congress has recognized the crisis caused by second-rate assistance being provided to capital defendants. Congress is currently considering a bill known as the Innocence Protection Act.35 The purpose of this act is two-fold: to provide for post-conviction DNA testing and to establish a competent counsel grant program.36 Title II of the proposed Act is geared towards ensuring competent legal service in capital cases.37 The Act also seeks to establish a National Commission on Capital Representation (the “Commission”).38

If the Act is passed, the Commission would be responsible for surveying the current systems of appointing counsel for indigent capital defendants and formulating standards for adequate representation of those defendants.39 After assessing the current systems used to appoint counsel to represent indigent capital defendants, the Commission will recruit attorneys to represent such defendants.40 The Commission is also charged with monitoring the performance of the qualified attorneys who have been recruited41 and reimbursing attorneys for the expenses incurred in a capital trial,42 such as the expenses of investigators, experts, scientific tests, and necessary support services.43

For states to be eligible for a Capital Defense Incentive Grant, as provided by the Act,44 they must (1) agree to comply with the standards promulgated by the Commission45 and (2) use the funds to train attorneys to defend capital cases46 and to provide experts and other services necessary to attorneys trying capital cases.47 These funds are not guaranteed to the states,48 and an incentive grant can be withheld if the state does not maintain an effective system for providing adequate representation for capital defendants in accordance with the standards established by the Commission.49

E. Suggestions for Reform
Although several efforts have been made, both by the American Bar Association (“ABA”) and by individual states,50 to increase the quality of counsel in death penalty cases, these attempts have been largely unsuccessful. Most states, through their own efforts, have made little progress in ensuring effective representation for capital defendants.

The efforts of the ABA in advocating reform in death penalty cases has also had little effect on the current state of indigent death penalty representation. Although the ABA standards were promulgated as a result of extensive study and research, most states chose not to adopt them, for reasons that are largely unknown.

State statutes establishing standards for counsel have not improved the current crisis in death penalty jurisprudence. Though states have enacted statutes in the hope that the problem will be solved, instances of enormously ineffective assistance of counsel are still prevalent in death penalty cases. Additionally, the statutes often proscribe those without certain qualifications or experience from defending capital cases, the so-called “unqualified” attorneys may perform far more effectively than others who are “qualified” under the statute.

The prospect of reform seems somewhat more likely with the proposed passage of the Innocence Protection Act, because it will require states to comply with the standards for counsel set by the Commission, in order to receive grants. This conditional grant program provides an incentive to the states to work to improve the quality of representation for capital defendants.

1. Moratorium
It is not enough just to implement the procedures set forth in the Innocence Protection Act. A nationwide moratorium must be imposed while proper standards are promulgated to ensure capital defendants an adequate defense. Additionally, those standards cannot exclude those persons who may not have the requisite qualifications (such as a set number of felony trials), but who have the resources and diligence to offer meticulous representation for capital defendants. The standards must allow programs that aid indigent defendants, such as those found at some law schools, to continue. Before any more executions take place, the death penalty system must be reviewed. The tragedies that unfold daily in capital litigation must be corrected before any more innocent persons are sentenced to death, and before more capital defendants are allowed to proceed with pitifully inadequate counsel.

2. Greater Resources
States must also be willing to share some of their own resources to provide capital defendants with quality representation. Because indigent defendants often have their entire defense paid for by the state, the amount contributed by the state for their defense will often determine the effectiveness of the indigent’s defense. States must contribute enough resources to indigent defender programs to ensure that each capital defendant receives adequate representation at trial.

Whether the federal government, or the individual states set adequate standards for competent representation of capital defendants, the reality still remains that steps must be taken to resolve the calamity facing death-eligible defendants. In order to guarantee quality representation for all capital defendants, executions must be stopped until new standards and rules are enacted to solve the current crisis.

3. Courses on Effective Assistance
Even if the Innocence Protection Act is enacted, reform needs to occur on a more remedial level. All law schools offer some variation of a Professional Responsibility course, teaching law students about the ethical restraints placed upon attorneys. Although, in some schools, this course touches upon the issue of ineffective assistance of counsel, a more in-depth education is necessary. A course specifically addressing effective assistance of counsel, and how to render effective assistance, should be available in law schools. This should be a required course, but, at a minimum, the course be strongly recommended to students.

An “Effective Assistance of Counsel” course, however, would not concentrate solely on effective assistance in capital trials. To assume all law students want to practice, or are even interested in, death penalty litigation, is simply unreasonable. Instead, the course should explore ways to provide effective assistance in both civil and criminal cases. Because of the crisis in capital defense, however, a portion of the course should be devoted to rendering effective assistance in death penalty cases.

A course such as this would offer each law student multiple benefits. Students uninterested in criminal or death penalty litigation would learn how to act competently in civil cases, and dispel the worry that many recent law school graduates have: making an egregious mistake while representing a client. Additionally, the course would help to ensure that law students will be armed with a better understanding of ineffective assistance, and will consequently be better able to recognize when they, or another attorney, may be in danger of rendering ineffective assistance.

Capital defendants would also derive a benefit from all law students taking this course. When an attorney is appointed to a capital case, even if they have little or no experience in capital defense (as is often the case), the attorney will at least have some idea of the kind of assistance that he or she is required to provide to the client. A capital defendant, therefore, will have a better chance of receiving effective assistance from his or her attorney.

Not only would this program benefit capital defendants, but it will also benefit all the attorney’s clients. Trial attorneys will be able to represent their clients to the best of their abilities, keeping in mind the duty to render competent legal assistance. Appellate counsel will be more equipped to spot potential instances of ineffective assistance when perusing a record. Courts will also benefit by the increased quality of representation.

Furthermore, judicial efficiency will be fostered by the requirement of an Effective Assistance of Counsel course. If assistance to clients is of higher quality, it is reasonable to assume that claims of ineffective assistance and malpractice actions may decrease, thereby advancing judicial efficiency, and helping, if only slightly, to unclog dockets.

4. Continuing Legal Education
Another step that must be taken to reform the imposition of capital punishment in the United States is to educate those attorneys who do have to defend capital cases. Before an attorney should be permitted to engage in capital defense, he or she should have to enroll in and complete a continuing legal education course (CLE) in death penalty litigation. Imposing this standard on attorneys wishing to practice capital defense has two main benefits.

First, this requirement eliminates many of the problems created by a standard based upon the number of felony jury trials conducted by a particular attorney, or other numerically based standards. The standard proposed here would allow non-practicing attorneys, such as law professors, to engage in capital defense without having to satisfy a rigid numerical requirement. Requiring a continuing education course on the death penalty will allow those persons to learn about what must be done in order to render adequate legal assistance to capital defendants. The knowledge obtained from such a course may be more important for purposes of adequate legal representation than trying a set number of felony trials.

A second important benefit is that this requirement ensures that every attorney appointed to a capital case will have at least a basic understanding of what is involved in a capital trial. Though this still will not be a perfect substitution for having actual capital defense experience, a capital attorney will at least understand what a capital trial entails. Although this solution is not perfect, and still presents several problems, it will at least ensure that attorneys defending capital cases will have some inkling of what is expected of them as a part of competent representation in a capital case.

F. Conclusion
Capital defendants are often the victims of inadequate representation. Their convictions are unlikely to be overturned on the basis of ineffective assistance because of the harsh Strickland standard. Moreover, in many states, representation of capital defendants has fallen to a dismal level. Attorneys representing capital defendants, especially those who are indigent, are hampered by several liabilities, including a suffocating workload and miserably low pay. Although some states, as well as the ABA, have promulgated guidelines to ensure effective capital representation, these guidelines and standards have had little, if any, effect on the performance of many capital attorneys. In order to correct this injustice, executions must be halted while proper rules and standards are formulated to ensure that capital defendants receive competent representation in court. These standards must guarantee that a capital defendant does not pay for his attorney’s error with his life. n

1 Patricia Manson, For Defense, Reform Tide is a Buoyant Force, Chi. D. L. Bull. (Apr. 26, 2000), at 1. The Nebraska legislature also voted for a moratorium on execution, but the moratorium was rejected by Nebraska Governor Mike Johanns. Id.
2 Id.
3 U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.”).
4 287 U.S. 45 (1932). In Powell, Justice Sutherland, writing for the majority, noted:
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge [to adequately] prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence.
Id. at 68-69.
5 McMann v. Richardson, 397 U.S. 759, 771 (1970) (holding that “if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel”).
6 466 U.S. 668 (1984).
7 Id. at 672.
8 Id. at 672.
9 Id. at 673.
10 Id.
11 Id. Counsel did not request a presentence report because the defendant had told the trial judge that he had no significant criminal record. The production of a presentence report would have detailed the defendant’s criminal history, and belied the claim that defendant did not have a significant prior criminal record. Id.
12 Id. at 687.
13 Id.; see also infra notes 23-29 and accompanying text for a discussion of the Supreme Court’s “death is different” doctrine.
14 Id. at 688.
15 Id. at 689.
16 Id.
17 Id. at 691.
18 Id. at 693.
19 Id. at 689.
20 Id. at 688-89.
21 Id. at 687.
22 Id. Illinois adopted this standard shortly after the Strickland decision, in People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).
23 See Woodson v. North Carolina, 428 U.S. 280, 322-23 (1976) (Rehnquist, J., dissenting); see also Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring); Gardner v. Florida, 430 U.S. 349, 357-58 (1977).
24 Id.
25 Id. at 412.
26 Ford v. Wainwright, 477 U.S. 399, 411-12 (1986).
27 Woodson, 428 U.S. at 323 (Rehnquist, J., dissenting).
28 Furman, 408 U.S. at 306 (Stewart J., concurring).
29 Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. Ill. L. Rev. 323, 333.
30 Strickland, 466 U.S. at 697.
31 See id. at 695.
32 See supra notes 15-18 and accompanying text for a discussion on the deference granted to counsel as a result of the Strickland decision.
33 See Bundy v. Wilson, 815 F.2d 125 (1st Cir. 1987) (summarizing appellate provisions for criminal defendants on a state-by-state basis, and documenting that forty-seven of the fifty states provide criminal defendants with at least one appeal as of right). But see McKane v. Durston, 153 U.S. 684, 687 (1894) (criminal defendant has no right to appeal a conviction under the United States Constitution); Jones v. Barnes, 493 U.S. 745, 751 (1983) (reaffirming that criminal defendants have no right under the United States Constitution to appeal a conviction). See also Marry v. Giarratano, 492 U.S. 1, 22-23 (1989) (Stevens, J., dissenting) (affirming that there is no right to an appeal but that the unique nature of the death penalty enhances the importance of the appellate process); Whitmore v. Arkansas, 495 U.S. 149, 165 (1990) (Marshall, J., dissenting) (affirming that there is no right to an appeal, but arguing that appellate review of capital cases should be constitutionally mandated to ensure that the death penalty is not imposed arbitrarily or capriciously).
34 See United States Department of Justice, Capital Punishment 1999, at (last visited March 16, 2001). However, Idaho, Indiana, Kentucky, Oklahoma, and Tennessee require review of the sentence only. Id. This review is usually conducted by the State’s highest court, regardless of the defendant’s wishes. Id. In South Carolina, the defendant may waive review of his or her sentence if the defendant is deemed to be competent. Id.
35 Criminal Justice Integrity and Innocence Protection Act of 2001, S. 486, 107th Congress (2001); Innocence Protection Act, H.R. 912, 107th Congress (2001).
36 H.R. 912; S. 486.
37 H.R. 912 Tit. II; S. 486 Tit. II.
38 H.R. 912 Tit. II § 201(a); S. 486 Tit. II § 201(a).
39 H.R. 912 Tit. II §201(b)(1), (2); S. 486 Tit. II § 201(b)(1), (2).
40 H.R. 912 Tit. II § 201(c)(1)(A); S. 486 Tit. II § 201 (c)(1)(A).
41 H.R. 912 Tit. II § 201(c)(1)(D); S. 486 Tit. II § 201 (c)(1)(D).
42 H. R. 912 Tit. II § 201(c)(3), (4), S. 486 Tit. II § 201(c)(3), (4). This Section also provides for the compensation of the attorneys time and service, at an hourly rate in light of: the attorney’s qualification and experience, and the local market for legal representation. The compensation will also take into account the complexity and responsibility of a capital case.
43 H.R. 912 Tit. II, § 201 (c)(4); S. 486 Tit. II, § 201(c)(4). Additional reimbursable expenses are costs of law clerks and paralegals.
44 H.R. 912 Tit. II § 207A; S. 486 Tit. II § 207A.
45 H.R. 912 Tit. II § 207A(a)(2); S. 486 Tit. II §207A(a)(2).
46 H.R. 912 Tit. II § 207A(b)(1); S. 486 Tit. II §207A(b)(1).
47 H.R. 912 Tit. II § 207A(b)(2); S. 486 Tit. II §207A(b)(2).
48 H.R. 912 Tit. II § 20110; S. 486 Tit. II §20110.
49 H.R. 912 Tit. II § 20110(1)(B); S. 486 Tit. II §20110(1)(B).
50 See, e.g., Il. Sup. Ct. R. 714 (2001).

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