Legal disparities in the capital of capital punishment.

Author:Phillips, Scott

    Death penalty opponents charge that wealthy defendants who can hire legal counsel are exempt from capital punishment. Former Supreme Court Justice William Douglas, for example, noted: "One searches our chronicles in vain for the execution of any member of the affluent strata of this society." (1) Justice Douglas also compared American capital punishment to ancient Hindu law, suggesting that wealthy defendants who can hire legal counsel are immune from execution in practice, just as Brahmans were immune from execution by law. (2) Noted abolitionist Sister Helen Prejean has argued succinctly, "[R]ich people never go to death row." (3)

    Death penalty opponents also charge that indigent defendants who receive court-appointed counsel are frequently condemned to death. Sister Prejean commented that "capital punishment means them without the capital get the punishment." (4) Indeed, anecdotes of inept appointed counsel abound: counsel have been caught drunk in court, asleep in court, and at times offer no defense during the punishment phase of a capital trial. (5) David Dow summarized the issue: "[R]ace matters in the death penalty system, but socioeconomic status matters even more. Wealth matters because in many cases trial outcomes depend less on what really happened than on an advocate's skill." (6)

    The heart of the critique is a question of arbitrariness. The term arbitrary has two meanings: death sentences are imposed randomly or death sentences are influenced by legally irrelevant factors. (7) The latter interpretation can be illustrated through an anecdote that Stephen Bright, the President of the Southern Center for Human Rights, recounts: "A member of the Georgia Board of Pardons and Paroles has said that if the files of 100 cases punished by death and 100 punished by life were shuffled, it would be impossible to sort them out by sentence based upon information in the files about the crime and the offender." (8) Put differently, death penalty opponents argue that the relevant legal facts of a capital case cannot fully explain whether a defendant lives or dies, as irrelevant facts such as having the resources to hire counsel also matter.

    Despite the seriousness of the critique and the potential implications for equal justice, social science research on the relationship between legal counsel and capital punishment is limited. The few available studies, based on data from the 1970s, provide mixed results. Drawing on a sample of defendants convicted of first degree murder in Florida from 1973 to 1977, Bowers reported that indigent defendants represented by appointed counsel were more likely to be sentenced to death than defendants represented by hired counsel. (9) Yet Foley examined all defendants indicted for first degree murder in twenty-one Florida counties from 1972 to 1978 and reached the opposite conclusion: the defendant's form of legal counsel was unrelated to the imposition of the death penalty. (10) Moving from Florida to Georgia, Baldus and his colleagues concluded that defendants with court-appointed counsel were more likely than those with hired counsel to receive a death sentence, though the authors did not consider the issue in depth. (11) In a subsequent re-analysis of the Baldus data, Beck and Shumsky examined case outcomes for all 476 defendants convicted of capital murder and death-eligible in Georgia from 1973 to 1978, and reported that the adjusted odds of a death sentence were 1.87 times higher for defendants with courtappointed counsel compared to defendants with hired counsel. (12)

    This Article draws on modern data to evaluate death penalty opponents' two main premises: (1) Defendants who can hire counsel are less likely to be sentenced to death; and (2) Only the wealthy can afford to hire counsel. To explore such issues empirically, the research focuses on the population of adult defendants indicted for capital murder in Harris County, Texas from 1992-1999 (n=504).

    Harris County--home to Houston and surrounding areas--is an interesting place to conduct the research. Harris County is the largest jurisdiction in the nation to use the appointment method rather than the public defender method to deliver indigent capital defense, (13) though by no means the only such jurisdiction. Under the appointment method, the judge appoints a member of the private bar to represent an indigent defendant. In contrast, public defender offices are comprised of a salaried staff of government attorneys who handle indigent cases--the bureaucratic parallel to the District Attorney's office.

    Harris County is also arguably the capital of capital punishment. With 106 executions in the modern era, defined as the Supreme Court's reinstatement of capital punishment in 1976 to the present, Harris County has often captured the national and international spotlight in the death penalty debate. (14) As Table 1 demonstrates, if Harris County were a state, it would rank second in executions after Texas. In fact, Harris County has executed as many offenders as all of the other major urban counties in Texas, combined. The period from 1992 to 1999 is also critical because the number of death sentences in Harris County climbed to historic highs. From 1976 to 1991, Texas's death row received an average of six offenders per year from Harris County. But from 1992 to 1999, the average almost doubled to eleven offenders per year. The average then dropped to five offenders per year from 2000 to 2007. (15)

    Harris County officials reject death penalty opponents' arguments. District Judge Doug Shaver, in an interview with the Texas Lawyer, noted that appointed counsel might be superior to hired counsel: "From where I sit, the appointed attorneys may even be better than the paid attorneys...." (16) Indeed, District Judge Michael McSpadden suggested in an interview with the Houston Chronicle that appointed attorneys are definitely superior to hired attorneys: "If you are charged with a criminal offense in Harris County, you would be much better off in our court, and many of the other courts, with a court-appointed rather than a retained attorney." (17) Offering a different response, John Holmes, the Harris County District Attorney from 1980 to 2000, contended in an interview with the Houston Chronicle that appointed and hired counsel are equally ineffective in capital cases: "I don't think it makes a hill of beans what kind of lawyer you are on these cases. These crimes are so horrible Clarence Darrow's not going to help these guys." (18) In the absence of sustained research, the relationship between legal counsel and capital punishment remains an open question.

    The current research findings both support and refute death penalty opponents' arguments. Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a mere portion of the case were substantially less likely to be sentenced to death. Yet hiring counsel does not appear to be the province of the wealthy. Instead, virtually all capital defendants seem to be poor. Poor defendants do occasionally hire legal counsel, presumably because friends and relatives pool resources in the hour of need. Such patterns provide strong evidence of arbitrariness: even after using multivariate statistical techniques to control for other factors that might influence the outcome of a case, the defendant's ability to hire counsel transforms the legal landscape. To be clear, the findings are not an indictment of appointed attorneys; the appointment system is flawed, not the individuals who work within the system.

    Though not the central focus of this Article, the data also reveal that defendants who hired counsel for the entire case were much more likely to be acquitted. Because the number of acquittals is very small, the relationship must be considered provisional. Nonetheless, the relationship is strong. Moreover, the potential implications for erroneous acquittal and wrongful conviction suggest that the relationship demands attention.

    Some might wonder whether the research has any relevance beyond Houston. To answer the question, consider the following: 252 of the 254 counties in Texas use the appointment method of indigent defense, (19) and 426 of the 1,141 executions in the modern era have occurred in Texas. (20) Understanding capital punishment in America requires a close examination of Texas, and understanding capital punishment in Texas requires a close examination of the appointment method of indigent capital defense.

    This Article is organized as follows: Part II describes the appointment method of indigent capital defense in Texas, including an historical overview and a review of existing critiques; Part III describes the research protocol, including the population of cases, measurement strategies, and statistical techniques; Part IV reports the bivariate and multivariate findings; Part V situates the findings within a broader discussion of arbitrariness and argues for the creation of a Public Defender Office and a specific Capital Defender Office in Harris County.



      To understand the relationship between legal counsel and capital punishment, it is important to describe how indigent defense operates in Texas generally, and in Harris County specifically. The State of Texas does not fund or administer indigent defense. Instead, each county is responsible for developing a method to provide counsel to the poor. In the arena of capital punishment, two methods have evolved: appointed counsel and public defender offices. (21) Of the 254 Texas counties, 252 use the appointment method. (22)

      The standards for being appointed to a capital case have changed over the years. (23) Prior to 1991, state law was silent regarding standards--Texas judges could appoint any member of the...

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