support the creation of the PCDOs to address a looming crisis in state and federal post-conviction death penalty cases. There were too few competent lawyers willing and able to represent the indigent condemned, and too few resources provided to those who stepped forward. In those states with large death-row populations, the dearth of qualified counsel willing to provide representation in capital cases had brought the process to a standstill.

To address these problems, PCDOs were established in 20 states where the death penalty is authorized. PCDOs were staffed by counsel experienced in the intricacies of capital litigation. They provided numerous death-sentenced individuals with competent representation, and offered training and assistance to private counsel, thereby increasing the pool of attorneys willing to accept appointment in capital cases. In 1995, the federal judiciary concluded that the PCDOs played a vital role in providing cost-effective, qualified counsel to death-sentenced individuals.

PCDOS, however, received a harsh reaction from death penalty proponents. Prompted by criticism of the program from the National Association of Attorneys General and others, Congress eliminated funding for PCDOs. With the termination of federal funding, many of the PCDOs had to dramatically scale back operations; seven of the 20 offices closed their doors entirely. This left hundreds of people facing the death penalty without adequate representation and some with no representation at all. The demise of the PCDOS also has made cooperation of private counsel less forthcoming. Many have refused to take capital cases without the backup of a PCDO. As a result, a growing number of cases have entered federal habeas corpus proceedings with no development of claims, no investigation of facts, and no competent counsel to continue on the case.

Shortly after defunding PCDOs, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which created a statute of limitations that in most states allows one year for filing a federal habeas corpus petition, usually from the denial of certiorari on direct appeal. AEDPA also established a scheme whereby if a state "opts in" by establishing a mechanism for the appointment and compensation of counsel in state post-conviction proceedings, it can obtain certain "benefits," including the reduction of the statute of limitations for filing a first federal petition from one year to 180 days, and an accelerated process of decision in the federal courts. Although no state has yet been held to qualify as an "opt-in" state under these provisions, in the wake of the enactment of AEDPA, many states created new post-conviction processes in an attempt to "opt in" and obtain these "benefits." Thus, while the availability of counsel was diminishing due to the defunding of PCDOs, the state and federal jurisprudence became more rigorous and complex.

When PCDOs were defunded, 3,045 individuals were under a state sentence of death; today more than 3,688 reside on death row. The vast majority are in states that once had a PCDO. Many of these inmates are in the state post-conviction process and will soon enter federal court.

Section I of this report traces the history of the PCDOs, from their creation to their demise. Section 11 describes the post-PCDO world state-by-state. This review leads to the conclusion that most of the problems that precipitated the creation of the PCDOs exist once again, but now there are more cases, fewer experienced attorneys, and an increasingly complex and accelerated jurisprudence.

I. HISTORY OF THE POST-CONVICTION DEFENDER ORGANIZATIONS.

1

In 1976, the Supreme Court's decision in Gregg v. Georgia 1 cleared the way for the reimposition of the death penalty in the United States. In the years following Gregg, an increasing number of states passed death penalty laws. This led to a greater number of criminal trials ending with a defendant sentenced to death and a rise in the number of death-row inmates who had completed direct appeal 2 and post-conviction proceedings 3 in the state courts. Those inmates denied relief by the

1428 U.S. 153 (1976).

2 On direct appeal, the defendant contends before state appellate courts that the trial judge committed an error of law that requires reversal of the conviction or sentence. Direct appeal is generally limited to those errors provable on the trial record. If state appellate courts find no error and affirm the conviction and sentence, the defendant can petition to the United States Supreme Court for certiorari review.

3 State post-conviction review allows a defendant to raise claims of error that were not litigated on direct appeal because the constitutional violation did not appear in the trial record. Generally, post-conviction review follows the completion of direct appeal, although some states combine the two processes. In some states, the post-conviction petition is initially filed in the appellate court; in others, it is filed in the trial court and any denial of relief is appealed. At times, factual development of claims at an evidentiary hearing occurs. If the state courts ultiContinued

state courts then moved into the federal courts, seeking federal review of their cases by writ of habeas corpus. The federal habeas corpus statute 4 permits a state inmate to obtain federal court review of his conviction and sentence to determine whether any violation of the United States Constitution or federal laws occurred. Historically, habeas corpus has acted as a vital systemic check upon the state courts and their application of fundamental federal constitutional protections. This is especially true in cases where the inmate has been sentenced to death. Of the capital cases reviewed in federal habeas corpus proceedings between 1973 and 1995, two out of five (40 percent) were found to have constitutional error.5

A. WHY CONGRESS FUNDED PCDOS: TOO FEW LAWYERS FOR THE INDIGENT CONDEMNED, STALLED CASES, AND CHAOTIC REVIEW.

Little more than ten years after the Gregg decision, the review of capital cases in federal habeas corpus proceedings had become a quagmire. As more and more cases entered the federal courts, a greater number came to the district courts' attention not through the filing of an ably-written petition, but on a hastily-drafted emergency motion for a stay of execution filed by volunteer counsel recruited serendipitously only days before. In some states, emergency motions were filed by prisoners acting without counsel. Often, federal judges were forced to put aside scheduled work and consider, sometimes through the night, such emergency filings. It soon became apparent why a growing number of state capital cases were arriving at the federal courthouse door slapped together at the last minute. In many states, ill-funded indigent defense systems failed to provide sufficient numbers of seasoned defense attorneys for capital trials and subsequent state appeals. As a consequence, important issues were not iitigated properly, or were not litigated at all, in those proceedings. Moreover, after the direct appeal was completed, indigent death-sentenced inmates had to fend for themselves to find pro bono counsel for state post-conviction proceedings.7 Few states had in place a mechanism for matching qualified counsel with indigent capital inmates so that claims not resolved adequately on direct review could be promptly and thoroughly reviewed in the state post-conviction process. Finally, once they reached federal court, condemned inmates had no right to counsel to pursue habeas corpus relief; the appointment of counsel was within the discretion of the federal district court judge.8 And even if the district court appointed federal habeas counsel, the appointment generally occurred after a habeas corpus petition was already filed, thereby precluding counsel's assistance at the most critical stage of any habeas corpus proceeding the preparation of the petition.9

During these years, the difficult and time-consuming task of recruiting and matching willing volunteer counsel with indigent capital prisoners in state post-conviction and federal habeas corpus proceedings usually fell to small, non-profit legal services organizations, national civil rights groups, the American Bar Association, and individual citizens. But by 1988, the demand for counsel greatly exceeded the number of volunteers these groups could identify. Indeed, the American Bar Association noted in 1988 that "there simply are not, and will not be, enough (qualified attorney) volunteers" to handle the death row cases generated by the states. 10 In

mately deny post-conviction relief, certiorari review in the United States Supreme Court may be sought.

428 U.S.C. § 2254(a).

5 JAMES LIEBMAN, JEFFREY FAGAN & VALERIE WEST, BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995, at 4 (2000).

6 See generally American Bar Association Task Force on Death Penalty habeas corpus (Ira P. Robbins, rep.), Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 AM. U. L. Rev. 1 (1990) (containing materials produced by the American Bar Association Criminal Justice Section Project to Study habeas corpus Review of State Death Penalty Convictions); Report and Proposal of the Judicial Conference Ad Hoc Committee on Federal habeas corpus in Capital Cases at 1, 5 (1989) (also called the "Powell Committee Report" after its chair, former Supreme Court Justice Lewis Powell, Jr.).

7 Although there is a constitutional right to counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), and on direct appeal, Douglas v. California, 372 U.S. 353 (1963), there is no recognized constitutional right to counsel in state post-conviction or federal habeas corpus proceedings. Murray v. Giarratano, 492 U.S. 1 (1989); Coleman v. Thompson, 501 U.S. 722 (1991). 8 U.S.C. §3006A(g).

9 Indeed, in McFarland v. Scott, 512 U.S. 849, 856 (1994), the Supreme Court noted that in light of the heightened pleading requirements for habeas corpus petitions, requiring an indigent capital petitioner to file a petition without the assistance of counsel "would thus expose him to the substantial risk that his habeas claims would never be heard on the merits."

10 Linda Greenhouse, Supreme Court Roundup: Right to Death-Row Lawyer Curbed, N.Y. TIMES, June 24, 1989, at 8 (citing amicus curiae brief of the American Bar Association in Murray v. Giarratano, 492 U.S. 1 (1989), LEXIs, News Library, NYT File.

those states with large deathrow populations, the dearth of qualified counsel willing to provide representation in death penalty cases brought the process virtually to a stand still. And increasingly, state judges or governors, frustrated with the slow pace of capital appeals, set execution dates to move the cases through the system. By this time, concerns over the large number of death penalty cases in the pipeline, and the limited number of attorneys familiar with the complexities of both death penalty and federal habeas corpus jurisprudence, caused the federal judiciary and bar to search for some vehicle to ensure that trained and adequately supported attorneys could be found. Without such a mechanism, neither the courts nor the bar could ensure that the death-penalty review process would continue to function. In June 1988, in cooperation with the Administrative Office of the United States Courts, the American Bar Association sponsored a national conference to address the growing crisis resulting from the unavailability of counsel in capital post-conviction and habeas corpus proceedings.11 Following this conference, a number of states formed blue-ribbon panels-comprised of the state and federal judiciary, bar association leaders, state and local prosecutors, civil rights leaders, and the defense barto study the problem further. These committees found that the shortcomings within the states' systems were frustrating both the pace and quality of justice in the federal courts, and that federal habeas corpus review of state capital cases would continue to be chaotic and inefficient unless Congress took action to deal with the crisis realistically. In response, the committees recommended the creation of death penalty resource centers.

Soon thereafter, Congress took two important steps to address the chronic lack of seasoned and adequately compensated counsel in the capital process. First, recognizing that early assignment of competent counsel can greatly reduce both the length of time and the amount of resources required to litigate a death penalty case to conclusion, 12 Congress enacted a statutory right to counsel for condemned inmates in federal habeas corpus proceedings in the Anti-Drug Abuse Act of 1988.13 Under section 848(q) of Title 21, federal courts are obligated by statute to appoint experienced attorneys to represent financially eligible federal habeas corpus petitioners under a sentence of death. So that counsel may assist in the preparation of the federal petition, section 848(q) also allows the inmate to request appointment before the petition is filed. 14 And to make such representation more financially feasible for experienced practitioners, it directs that appointed counsel handling capital habeas corpus cases be compensated higher than in non-capital cases.

Second, and importantly, Congress recognized that the complexity and demanding nature of capital cases required additional litigation resources. Following the recommendations put forth by the states' blue-ribbon panels, it approved the federal judiciary's request for federal funding of defender organizations to recruit, assist, and support the private bar with these cases. Congress also understood that the quality of review afforded in the state system had a direct bearing upon the cost, speed, and integrity of subsequent federal review. Thus, these organizations were also encouraged to seek state resources so that they could likewise aid counsel in state post-conviction proceedings. Such assistance in state proceedings would enhance the quality of representation, and thus simplify later federal proceedings. Moreover, such a system would encourage continuity of representation; lawyers recruited in the state system would remain with a case as it entered federal court. Thus, in a model of cooperation between the federal judiciary, state governors, state judges, state and local prosecutors, private bar associations, and Congress, death penalty resource centers were established in a number of jurisdictions. 15 These resource centers, later known as Post-Conviction Defender Organizations (PCDOs), were structured as community defender organizations pursuant to subsection (h)(2)(B) of the Criminal Justice Act, 18 U.S.C. §3006A. PCDOs received grants upon approval of the United States Judicial Conference, contingent upon each PCDO's ability to obtain funds to support the state-court-related work that it intended to perform. In FY 1995, grants totaling $19,354,400 supported PCDOs in 20 states. 16

PCDOs performed a number of functions. They tracked the status of the appeals of those on death row so that counsel could be found and filings could be made in

11 Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329, 333 (1995).

12 The Powell Committee Report reached similar conclusions.

13 21 U.S.C. § 848(q).

14 McFarland v. Scott, 512 U.S. 849 (1994).

15 See Roscoe C. Howard, Jr., The Defunding of the Post-Conviction Defense Organizations as

a Denial of the Right to Counsel, 98 W. VA. L. REV. 863, 906–13 (1996).

16 FY 1995 was the last year of full funding for PCDOs.

a timely, orderly fashion. They recruited volunteer attorneys and provided the assistance required to acquaint attorneys with the complex procedural and substantive aspects of capital habeas corpus representation. This assistance included training programs for volunteer and appointed counsel, consultations with counsel, assistance in investigating and litigating cases, and providing manuals, sample pleadings, briefs, and other support materials. Although counsel employed by the PCDOs personally represented a limited number of capital habeas corpus petitioners, direct representation was not their primary orientation.

B. THE COX COMMITTEE REPORT: THE JUDICIARY RECOMMENDS CONTINUED PCDO FUNDING WITH INCREASED DIRECT REPRESENTATION.

Six years after their creation, the federal judiciary concluded that the PCDOs played a vital role in providing cost-effective, qualified counsel in capital cases. In 1994, Judge Gustave Diamond, Chair of the Committee on Defender Services of the United States Judicial Conference, named three members of the Committee to a Subcommittee on Death Penalty Representation.17 The Subcommittee's task was to evaluate PCDO performance in assisting the federal judiciary in meeting its goals of making qualified counsel available for appointment, and providing quality costeffective representation in capital federal habeas corpus proceedings.

The Subcommittee's "Report on Death Penalty Representation" (hereinafter the "Cox Committee Report," after its chair, Judge Emmett Ripley Cox), concluded that PCDO handing should continue because PCDOs "play a vital role in providing representation in capital cases.' "18 The Subcommittee found that the very presence of PCDOS, and their ability to offer training and expert advice regarding each step of the habeas corpus process, emboldened private attorneys to accept assignments in capital habeas corpus cases. "Private lawyers who communicated with the Subcommittee almost uniformly expressed the view that they would not willingly represent a deathsentenced inmate without the assistance of a PCDO or similar organization. State and federal judges agreed that PCDO assistance was critical to the recruitment of private attorneys to represent death sentenced inmates." 19 Much more importantly, the Subcommittee noted that PCDOs brought for the first time some coordination in the delivery of defense services into the state and federal post-conviction process. These offices were crucial in motivating private attorneys to represent condemned inmates in state post-conviction proceedings, where often there is little or no compensation.20 Created at a time when the lack of competent and knowledgeable counsel in state post-conviction and federal habeas corpus proceedings often resulted in confusion, delay, and increased costs, the PCDOs dramatically expanded the pool of qualified counsel willing to accept these demanding cases. However, this reliance on private counsels central tenet of the PCDO concept caused the Subcommittee concern. It found that "the availability of private counsel both pro bono and compensated is diminishing across the country, despite PCDO assistance." ."21 For example, the Report noted that at the time, 28 condemned inmates were without counsel in state post-conviction proceedings in Texas. To address this concern, the Subcommittee recommended that PCDO funding be continued, but that PCDO counsel represent more death-sentenced inmates directly, rather than simply providing consultation and training to appointed counsel. The reason for this recommendation was twofold. First, because PCDOs received both federal and state resources, PCDO counsel could work in both state and federal court, thereby providing quality representation in state post-conviction proceedings and continuing that representation into federal court two factors that tend to decrease costs of federal habeas representation. Second, the cost of experienced salaried counsel employed by PCDOs was less than private counsel compensated under the CJA. Thus, to the extent PCDO counsel were able to provide representation in lieu of private appointed counsel, cost savings in capital cases could be achieved. In September 1995, the United States Judicial Conference approved the recommendations in the Cox Committee Report.

17 Judge Emmett Ripley Cox, of the United States Court of Appeals for the Eleventh Circuit, chaired the Subcommittee. Judge Arthur L. Alarcon of the Ninth Circuit Court of Appeals and Judge Miriam Goldman Cedarbaum of the Southern District of New York served as Subcommittee members.

C. CONGRESS DEFUNDS THE PCDOS.

PCDOs received a harsh reaction from death penalty proponents.22 In the spring of 1995, South Carolina Attorney General Charles Condon, testifying for the National Association of Attorneys General, urged Congress not to fund PCDOs unless state prosecutors got equal funding.23 Representative Bob Inglis, a Republican from South Carolina, and Representative Charles Stenholm, a Republican from Texas, in an open letter to their congressional colleagues in June 1995, assailed the PCDOs as "one of the major reasons that justice is being frustrated in capital cases around the country' and blamed 'the flow of federal money (to the PCDOs) that goes to finance endless and fruitless appeals."" The two congressmen persuaded the Subcommittee of the Departments of Commerce, Justice, and State of the House Appropriations Committee to eliminate funding for PCDOs.24 On January 5, 1996, Congress passed H.R.#1358, which called for a budget of $262,217,000 for the federal judiciary's Defender Services program so long as none of the funds were expended on PCDOS after April 1, 1996.25 With the termination of federal funding, many PCDOs closed their doors.

II. POST-PCDO PROBLEMS: ALL OF THE OLD ONES PLUS MORE CASES, FEWER EXPERIENCED ATTORNEYS, AND AN INCREASINGLY COMPLEX AND ACCELERATED JURISPRUDENCE.

The PCDOs were defunded before they achieved a uniform system of qualified representation in state post-conviction and federal habeas corpus cases. Nevertheless, in less than seven years, these offices had dramatically improved the level of defense services provided to hundreds of death sentenced inmates. With the withdrawal of PCDO funding, the national picture of post-conviction representation now resembles a tattered patchwork quilt.

After Congress eliminated funding for the PCDOs, those in Arkansas, Florida, Mississippi, Nevada, Oklahoma, Tennessee, and Texas closed their doors almost immediately. Drastically scaled-back services survived in Arizona, Alabama, California, Georgia, Illinois, Kentucky, Louisiana, Missouri, North Carolina, Ohio, Pennsylvania, South Carolina, and Virginia. In a minority of states, the surviving organizations receive limited state funds. In only a very few does the level of funding come close to that previously provided the PCDOs. Many no longer provide representation or assistance to counsel appointed in capital habeas corpus proceedings before the federal courts. Federal defender offices in some states have been called upon to represent death row inmates in federal habeas proceedings. The resulting hodgepodge of post-conviction representation since the withdrawal of PCDO funding has caused the cases of many indigent condemned inmates to slip through the cracks.

Other recent actions by the states since the defunding of the PCDOs have also affirmatively deepened the crisis in post-conviction representation. Many states, frustrated with the slow pace of executions, enacted new statutes imposing time limitations on the filing of capital post-conviction petitions. Counsel representing deathsentenced inmates in Arizona, Georgia, Illinois, Missouri, North Carolina, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia must now file post-conviction petitions and litigate their claims under accelerated timetables. Many private attorneys are unwilling to accept appointments in light of these changes. By speeding up the capital post-conviction process, these states have caused cases that would have worked their way through the state system over a period of time to become a tidal wave. The result: too many cases, too few experienced attorneys, and too little time.

But the old problems have hardly gone away. A large number of states still fail to provide adequate defense services for capital trial, appellate, and post-conviction

22 PCDOs never had universal support. The Cox Committee heard complaints that in some states, PCDO staff worked to abolish the death penalty rather than recruit attorneys or represent inmates. Cox Committee Report at 6 n.12.

23 In fact, a number of studies on the relative resources available for the prosecution and defense in capital cases have found that there is a disparity of funding in favor of the prosecution at all levels of capital cases. For example, in 1991, the American Bar Association study of the cost of the death penalty in state jurisdictions, made at the request of Congressman Don Edwards, Chairman of the Subcommittee on Civil and Constitutional Rights, reached this conclusion.

24 Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. VĂ. L. REV. 863, 913-14 (1996) (citing Marcia Coyle, Republicans Take Aim at Death Row Lawyers, NAT'L L. J., Sept. 18, 1995, at A 1, and Lis Wiehl, Program for Death-Row Appeals Facing Its Own Demise, N.Y. TIMES, Aug. 11, 1995, at A13).

25 Act of Jan. 6, 1996, Pub. L. No. 104-91, 110 Stat. 7.