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proceedings, with some furnishing none at all after direct appeal. As before, a substantial and growing number of condemned inmates who have completed direct review have no legal representation, nor any immediate prospects of being matched with competent counsel. Once again, in many states 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 has fallen on nonprofit organizations, national civil rights groups, the American Bar Association, and individual citizens, but without the assistance of PCDOs.

For example, in response to the growing crisis in post-conviction representation following the demise of the PCDOs, the American Bar Association Death Penalty Representation Project has accelerated its efforts to recruit volunteer lawyers. The process of recruitment, however, is a protracted one. Because law firms are aware that capital cases demand attorney time and resources at a level few other pro bono cases demand, approval, on average, takes four to six months. In addition, many of the firms recruited have no previous capital experience and require the guidance of experienced capital litigators. But without the support of the PCDOs, this guidance is difficult to find.26 Since early 1998, the Project has successfully recruited some 60 major law firms to represent capital inmates in post-conviction proceedings. But these efforts cannot come close to meeting the need. Indeed, in 1997 the American Bar Association called for a moratorium on executions, noting that the death penalty is administered through “a haphazard maze of unfair practices,” that many defendants facing the death penalty are represented by inadequately paid or incompetent lawyers, and that hundreds of the men and women on death row nationwide have no lawyers to represent.them in post-conviction appeals.27 The call for a moratorium was recently reemphasized by the ABA in light of mounting evidence of exonerations of death-row inmates, and the role that inadequate counsel played in their wrongful convictions.28

One reason for the devastating shortage of qualified counsel is the failure of most states to provide adequate compensation in capital post-conviction cases. Some states still provide no compensation for post-conviction counsel at all. A 1987 study commissioned by the American Bar Association Death Penalty Representation Project found that the average time devoted to a case by post-conviction counsel was 2,000 hours.29. These figures were gathered before the decade of United States Supreme Court decisions that substantially increased the complexity of habeas corpus litigation,30 and prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).31 More recently, the Spangenberg Group conducted a study of time and expenses required in Florida capital post-conviction cases. It concluded that “the most experienced and qualified lawyers at [one of Florida's three Capital Collateral Regional Offices] have estimated that, on average, over 3,300 lawyer hours are required to take a post-conviction death penalty case from the denial of certiorari by the United States Supreme Court following direct appeal to the denial of certiorari” through that state's post-conviction proceedings.32 The study found that these estimates were “consistent with” those reported by a number of pro bono firms involved in capital post-conviction litigation that were also surveyed.33 In addition, the ancillary costs expended by volunteer firms ranged from approximately $14,000 to in excess of $1.5 million.34 These reported costs far exceed those compensated by the vast majority of states. Moreover, the failure of the states to provide adequate compensation and reimbursement of costs not only contributes to the unavailability of lawyers, but also to the poor quality of performance that is actually rendered.35

26 Recognizing that it cannot persuade firms to undertake capital post-conviction cases without the kind of direction formerly offered by PCDO lawyers, the Project, through grants and other fund-raising efforts, now underwrites the salaries of six experienced capital litigators in Alabama, Georgia, Missouri, Texas, and Virginia who are designated as “resource counsel” to the pro bono firms the Project recruits. This action is viewed by the Project as a necessary, shortterm response to the current crisis in post-conviction representation.

27 Saundra Torry, ABA Endorses Moratorium on Capital Punishment, WASH. POST, Feb. 4, 1997, at A4, available at 1997 WL 2249666.

28 See Bill Rankin, Critics Speak Out on Death Penalty: Citing Shift in Attitudes on Capital Punishment, Lawyers Continue to Urge Execution Moratorium, ATLANTA CONST., Oct. 13, 2000, at D1, available at 2000 WL 5480954.

29 The Spangenberg Group, Time and Expense Analysis in Post-Conviction Death Penalty Cases, 11, 20 (Feb. 1987).

30 See, e.g., League v. Lane, 489 U.S. 288 (1989); Coleman v. Thompson, 501 U.S. 722 (1991); Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992); Herrera v. Collins, 506 U.S. 390 (1993); Brecht v. Abrahamson, 507 U.S. 619 (1993).

31 Pub. L. 104–32, 110 Stat. 1214 (1996).

32 The Spangenberg Group, Amended Time and Expense Analysis of Post-Conviction Capital Cases in Florida, 16 April 1998).

33 Id.
34 Id. at 13.

And all of these problemsboth new and old have only been exacerbated by the accelerated timetables and legal complexities arising from enactment of AEDPA. Several key provisions of AEDPA have heightened the obligations of counsel in state post-conviction proceedings. AEDPA has rendered the state post-conviction process more fraught with peril to the client who does not have a lawyer, or whose lawyer is unable, because of inadequate funding, to fully investigate, prepare, and present all claims in the first round of state post-conviction litigation.

A. AEDPA: A SWIFTER, MORE COMPLICATED HABEAS JURISPRUDENCE. The withdrawal of PCDO funding could not have come at a worse time. On April 24, 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996.36 Although AEDPA has transformed an already painfully complex habeas jurisprudence in many ways, exactly how it has done so is still not entirely clear. Îndeed, although five years have passed since its enactment, the interpretation and implication of many of AEDPA's provisions are still being litigated.

One of the dramatic changes wrought by AEDPA is the creation of a statute of limitations which in most states allows one year for filing a federal habeas corpus petition, usually from the denial of certiorari on direct appeal. 37 Although AEDPA deals strictly with cases being litigated in federal court, the statute of limitations provision creates a de facto statute of limitations for filing a post-conviction petition in state court. Some federal courts have held that even if the state post-conviction application would be considered timely under state law if filed at a later date, AEDPA's limitations period is not tolled until a state post-conviction application is actually filed in state court.38 Thus, for all practical purposes, death-sentenced inmates must file their state post-conviction petitions within one year, or more accurately, early enough to ensure that there will be time to investigate and prepare a federal habeas petition should the state challenge fail.

AEDPA thus creates a dire situation for unrepresented death row inmates. Once the United States Supreme Court denies certiorari following affirmance on direct appeal, the limitations period begins running. But without counsel, these inmates have no ability to investigate the kind of claims that form the basis of most successful post-conviction applications, that is, those that are developed from facts outside the record. Moreover, they have no ability to prepare and file for post-conviction relief. In an increasing number of cases, the state courts have appointed post-conviction counsel with only weeks left in the limitations period to file a state post-conviction petition, or the federal courts have appointed counsel with only weeks or days within which to file a federal habeas corpuspetition. In a few cases, the limitations period has passed without appointment of counsel.

AEDPA also creates a quid pro quo whereby if a state “opts in” by establishing a mechanism for the appointment and compensation of counsel in state post-conviction proceedings,39 it can obtain certain “benefits,” including the shortening of the statute of limitations for filing a first federal petition from one year to 180 days, 40 and an accelerated process of decision in the federal courts.41 No state has yet been held to qualify as an "opt-in” state under these provisions. However, 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.” 42 Thus, in many states, not only have post-conviction capital counsel had to unravel the mysteries of AEDPA, but have also had to learn, and litigate, the meaning of totally new state post-conviction statutes.

These and many other AEDPA provisions have significantly complicated and increased the uncertainty inherent in both state and federal post-conviction practice. Many part-time capital lawyers appointed in state post-conviction and federal habeas corpus proceedings who came to depend upon the PCDOs to keep them abreast

35 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, 78 (1990).

36 Pub. L. 104-132, 110 Stat. 1214 (1996). 37 28 U.S.C. § 2244(d)(1) (2000).

38 See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 121 S. Ct. 481(2000); Bingham v. Anderson, 21 F. Supp. 2d 639 (S.D. Miss. 1998).

39 28 U.S.C. $$ 2261, 2265 (2000).
40 28 U.S.C. § 2263 (2000).
41 28 U.S.C. $ 2266 (2000).

2 See, e.g., ARIZ. REV. STAT. $ 13–4041 (1999); ARK. CODE. ANN. $ 16–91–204 (2000) (legislative intent of statute is to obtain expedited federal review under AEDPA); S.C. CODE AÑN. $ 17–27160(B) (1999) (“South Carolina Effective Death Penalty Act of 1996 ”).

42

of significant legal developments are now required to master these comprehensive alterations to post-conviction practice in an accelerated environment. Some have failed to understand AEDPA's implications, and unwittingly forfeited their clients' right to federal habeas corpus review.43 Many others are simply refusing to represent capital clients altogether.

EJI's small staff is unflaggingly dedicated in its attempt to fill the huge gap in capital representation in Alabama, but it simply cannot do it all. Although EJI represents almost 100 deathrow inmates, 44 and the American Bar Association Death Penalty Representation Project and other groups have had some very limited success identifying volunteer counsel willing to represent capital prisoners in Alabama post-conviction proceedings pro bono, in no way can these resources meet the need. Approximately 31 Alabama inmates under sentence of death do not have lawyers to represent them in state post-conviction proceedings.

Other than EJI, there is no one else to provide these services. Alabama law does not require appointment of counsel in post-conviction proceedings.45 Resources for capital representation in Alabama are virtually nonexistent. Alabama has no statewide public defender system,46 nor is any other state or local entity including the state courts responsible for identifying counsel willing to represent death row inmates in post-conviction proceedings. No court in Alabama routinely appoints counsel for death row inmates who have concluded direct appeal. If a condemned inmate files a post-conviction petition pro se, the circuit court may appoint a local law

But there are few financial resources to work the case even if counsel is identified. On October 1, 2000, following the first rate increase in 18 years, post-conviction counsel in a capital case is now paid $60 per hour for in-court work and $40 per hour for out-of-court work, but there remains a $1,000 cap.48 There continues to be no state statutory right to funds for investigative or expert assistance. Moreover, there are no qualifications for capital post-conviction counsel required under state law or rule, and no state entity provides training or resource materials to those attorneys who are appointed.49

It is therefore not surprising that even if counsel is appointed by the state court, these attorneys usually have no post-conviction experience, and rarely investigate claims, gather evidence, or seek evidentiary hearings.50 Even those attorneys recruited by EJI and the ABA Death Penalty Representation Project rarely have any experience in capital litigation. Most are pro bono civil attorneys from outside Alabama who need substantial guidance. At present, the ABA Death Penalty Project provides limited funding for one EJI attorney to act as resource counsel to assist pro bono post-conviction counsel, but one person can only do so much.

The need to provide guidance to inexperienced capital counsel is made even more critical by recent events. At the urging of the Alabama Attorney General and the Governor,5

,51 the Alabama Supreme Court enacted a rule change, made retroactive to pending cases, that eliminates the Court's automatic review of capital cases, and also imposes strict deadlines.52 In a rather bizarre twist, although the rule change

yers. 47

43 See, e.g., Kreutzer v. Bowersox, 231 F.3d 460 (8th Cir. 2000); Goodman v. Johnson, No. 9920452 (5th Cir. Sept. 19, 1999) (unpublished), cert. denied, 528 U.S. 1131 (2000); Cantu-Tzin V. Johnson, 162 F.3d 295 (5th Cir. 1998), cert. denied, 528 U.S. 1091 (1999); Calderon v. United States District Court (Kelly), 127 F.3d 782 (9th Cir. 1997), cert. denied, 528 U.S. 1063 (1998). Spencer Goodman was executed by the State of Texas on January 18, 2000, and Andrew CantuTzin was executed by Texas in January 1999.

44 Rimer, supra, note 46 at Al. 45 Ex parte Cox, 451 So.2d 235 (Ala. 1983). 46 See Rimer, supra, note 46, at A1 In 2000, legislation to create a statewide public defender office in Alabama failed to pass.

47 In one such case, Henderson v. State, 733 So.2d 484 (Ala. Crim. App. 1998), an appointed lawyer, who successfully ran for District Attorney a few months later, told the court that the trial lawyer was not ineffective as had been alleged in the pro se petition and that the claim and the petition should be dismissed, which they were. The client contacted ER on the last day for filing a notice of appeal and asked for help. An appeal notice was filed and EJI recruited counsel. The client was nonetheless precluded from further post-conviction review because of the conduct of appointed counsel.

48 ALA. CODE 15–12–23.
49 EJI provides these services as its budgetary and staffing constraints allow.

50 Elisabeth Semel, Representing Death Row Inmates at the Outskirts of the Southern Front, CACJ FORUM, vol. 26, no. 1, at 37, 40.

Analysis: Alabama State Officials Continue to Rely on Electric Chair as Alabama's Primary Means of Execution, (All Things Considered, NPR radio broadcast, Feb. 17, 2000), available at 2000 WL 21469803.

52 See Court Comment to Ala. R. App. P. 39. The May 2000 amendment completely revises Rule 39 to remove the provision in the former rule that provided that a petition for writ of certiorari in a death penalty case would be granted as of right. Review is now at the discretion

51

was made effective in May 2000, the rule was not actually published until August 2000.

There is no doubt that capital post-conviction representation is crisis in Alaþama. But perhaps most unsettling is the fact that numerous unrepresented Alabama death row inmates now face the expiration of the federal statute of limitations. Indeed, in an unprecedented move, the State recently asked the Alabama Supreme Court to set execution dates for two unrepresented death row inmates for whom the federal statute of limitations has run. Pennsylvania.

At the time of the defunding of the PCDOs, about half of the then nearly 200 death row inmates in Pennsylvania had no lawyer. 53 The Commonwealth has long been widely regarded as having one of the worst systems in the country for providing indigent defense services. Indeed, Pennsylvania's death penalty representation crisis has been recognized for years. As early as 1990, the Joint Task Force on Death Penalty Litigation in Pennsylvania warned of a “problem of major proportions” in the provision of legal representation to indigent death-row inmates, and noted several “serious problems”, including: the shortage of qualified counsel to assist inmates in state and federal post-conviction proceedings; the lack of standards governing the qualifications for capital counsel or the appointment of counsel at any stage of state capital proceedings; the lack of standards for the compensation of counsel; the lack of state funding for investigation of capital cases; and the lack of any mechanism for the identification and recruitment of qualified counsel.

În the decade since the Task Force's report, little in Pennsylvania has changed. The Pennsylvania Capital Case Resource Center (PCCRC) was founded to address Pennsylvania's systemic and endemic failures to provide trained legal counsel for indigent death row prisoners. After more than a three-year delay in the provision of matching state funding, the PCCRC opened its doors as a federally-funded PCDO in July 1994. In FY 1995, its PCDO grant totaled $621,000. But after Congress defunded the PCDOs, state funding was also discontinued. After its defending and substantial downsizing, PCCRC became the Center for Legal Education, Advocacy and Defense Assistance (LEADA). LEADA received no governmental sustaining grants, and in 1996 the Legislature twice defeated measures to fund it. 54 Finally, because of a shortage of resources, LEADA closed its doors in June 1999.55 At the time, it represented more than 70 of Pennsylvania's 227 death-row inmates. 56 When LEADA dissolved, no state entity in Pennsylvania was available to systematically obtain stays of execution, recruit pro bono counsel for state post-conviction and federal habeas proceedings, or provide consulting, training, and support for appointed counsel.

Other actions by Pennsylvania affirmatively deepened the crisis in post-conviction representation. In November 1995, Pennsylvania amended its post-conviction statute so as to limit to one year the time in which condemned inmates may initiate collateral review.57 But the Commonwealth still has no standards governing the appointment of post-conviction counsel, and still provides no statewide funding for compensation of counsel and reimbursement of expenses in capital post-conviction cases. Instead, Pennsylvania leaves the funding for such cases to county governments.58 Indeed, 2000 was the first time Pennsylvania has ever provided any type of funding for post-conviction work, when the Legislature appropriated $600,000 for capital post-conviction training. However, this money is for training only. It cannot be used to compensate post-conviction counsel nor to reimburse expenses. Moreover, although the Governor's office was placed in charge of distributing these training funds, it has yet to do so.

of the Supreme Court. Rule 39 also requires that a petition for rehearing be filed in the Court of Criminal Appeals before a certiorari petition may be filed in the Supreme Court, and that a certiorari petition be filed within 14 days of the denial of rehearing by the Court of Criminal Appeals, Rule 39(c). If certiorari is granted, the briefing on the merits is to be completed by both parties within 28 days of the date the writ issues. Rule 39(h). There is no guarantee that the Supreme Court will hear oral argument even if certiorari is granted. Rule 39(1)&(j).

53 As of July 2000, Pennsylvania had a death row population of 235 men and women, the fourth largest in the nation. NAACP Legal Defense Fund, Death Row USA, July 1, 2000.

54 In 1997, while continuing to deny funding for post-conviction representation for indigent capital inmates, the Pennsylvania Legislature appropriated $500,000 to create a resource center for prosecutors in the Attorney General's office to assist with the opposition of capital post-conviction appeals.

55 Elizabeth Amon, No Stay for Pa. Defense Group: A Lack of Funding Shuts Down Death Row Advocate Group, NAT’L L. J., July 5, 1999, at A16.

56 Charles Thompson, Advocate for Death Row Inmates Closes Its Doors: Agency that Represented More than 70 Convicted Killers Loses Battle for Funding, PATRIOT-NEWS (Harrisburg, Pa.), July 4, 1999, at A7, available at 1999 WL 5144962.

57 1995 Pa. Legis. Serv. 32 (Spec. Sess. No. 1), § 1, codified at 42 PA. CONS. STAT. $9545(b)(I) (2000).

58 Amon, supra note 249.

Not long after the defunding of the resource center, a capital habeas unit was created in the Federal Court Division of the Defender Association of Philadelphia, the federal defender organization for Pennsylvania. Since its creation, the unit has attempted to take all new capital habeas corpus cases in the federal courts in Pennsylvania. This has recently become more difficult. The Pennsylvania Supreme Court has begun to dramatically reduce its backlog of capital cases, and headed for federal court is a wave of cases35 are now awaiting decision before the state supreme court, and another 15 have completed state evidentiary hearings and are awaiting decision by the trial court. At present, the unit represents over 50 capital habeas petitioners. Unfortunately, because of the lack of competent counsel and resources in state postconviction proceedings in Pennsylvania, when cases come to the unit following completion of the state post-conviction process, usually no discovery has been undertaken and little independent investigation has been done in the case. The unit must therefore expend federal resources to uncover all colorable claims to be included in the federal petition, and must do so within the time constraints of AEDPA's statute of limitations.

In June 1996, South Carolina enacted the "South Carolina Effective Death Penalty Act of 1996.” 59 The Act imposed for the first time a deadline for filing a postconviction petition in state coup. Now, counsel in capital post-conviction proceedings in South Carolina must file an application for post-conviction relief within 60 days of appointment. The Act also expedites other aspects of South Carolina capital postconviction proceedings.60 Many South Carolina judges strictly adhere to the statutory time limits. Moreover, due to fears that South Carolina may at some point be held to be an “opt-in" state and therefore entitled to the expedited procedures of AEDPA, counsel are often required to file a state post-conviction application within only days or weeks of appointment.

The Act also provides for appointment and compensation of post-conviction counsel. Indigent death-sentenced inmates are entitled to the appointment of two attorneys.61 Private counsel is compensated at the statutory rate of $50 per hour for outof-court work and $75 per hour for incourt work. The statutory cap is $25,000.62

ADMINISTRATIVE OFFICE OF THE

UNITED STATES COURTS
WASHINGTON, D.C. 20544

July 5, 2001
Hon. Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510-6275

Dear Mr. Chairman:

I am providing this letter in response to your July 3, 2001 letter asking that the judiciary clarify the record with regard to testimony given at the hearing held by the Committee on “Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases.” At that hearing the Committee heard testimony that the federal judiciary is spending more than $20 million in FY 2001 to fund “assistance and training in state capital cases-not federal cases. ” I want to assure the members of the Committee that this is not the case. The federal judiciary does not fund representation in state proceedings of individuals under a state-imposed death sentence, except in rare and limited circumstances.

59 1996 S.C. Acts No. 448, § 1 (eff June 18, 1996), codified at S.C. CODE ANN. $ 17-27-160 (1999).

60 S.C. CODE ANN. $ 17-27–160(C) (1999) (after the state files its return, the statute requires the court to hold a status conference within 30 days and to schedule an evidentiary hearing within 180 days of the conference, except for good cause shown.).

61 Id., $ 17–27-160(B) (1999).
62 See Id.; S.C. CODE ANN. $ 16–3–26 (1999).

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