Stephen B. Bright

Counsel for the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer

Courts have issued many pronouncements about the importance of the guiding hand of counsel, but they have failed to acknowledge that most state governments are unwilling to pay for an adequate defense for the poor person accused of a crime. Unfortunately, the Supreme Court has not been vigilant in enforcing the promise of Powell v. Alabama and Gideon v. Wainwright. Its acceptance of the current quality of representation in capital cases as inevitable or even acceptable demeans the Sixth Amendment. It undermines the legitimacy of the criminal courts and the respect due their judgments. No poor person accused of any crime should receive the sort of representation that is found acceptable in the criminal courts of this nation today, but it is particularly indefensible in cases where life is at stake. Even one of the examples of deficient representation described in this Essay is one more than should have occurred in a system of true justice.Providing the best quality representation to persons facing loss of life or imprisonment should be the highest priority of legislatures, the judiciary, and the bar. However, the reality is that it is not. So long as the substandard representation that is seen today is tolerated in the criminal courts, at the very least, this lack of commitment to equal justice should be acknowledged and the power of courts should be limited. So long as juries and judges are deprived of critical information and the Bill of Rights is ignored in the most emotionally and politically charged cases due to deficient legal representation, the courts should not be authorized to impose the extreme and irrevocable penalty of death. Otherwise, the death penalty will continue to be imposed, not upon those who commit the worst crimes, but upon those who have the misfortune to be assigned the worst lawyers.