Respondents, a class of indigent Virginia death row inmates who
do not have counsel to pursue postconviction proceedings, brought a
suit under 42 U.S.C. § 1983 in the District Court against various
state officials, alleging that the Constitution required that they
be provided with counsel at the State's expense for the purpose of
pursuing collateral proceedings related to their convictions and
sentences. The District Court concluded that respondents should
receive greater assistance than that outlined in
Bounds v.
Smith, 430 U. S. 817 --
which held that a prisoner's "right of access" to the courts
required a State to furnish access to adequate law libraries or
other legal aid so the prisoners might' prepare petitions for
judicial relief -- since death row inmates have a limited amount of
time to prepare petitions, since their cases are unusually complex,
and since the shadow of impending execution interferes with their
ability to do legal work. It found that Virginia's efforts --
access to a law library or lawbooks, the availability of "unit
attorneys," and appointment of counsel after a petition is filed --
did not afford prisoners meaningful access to the courts because
they did not guarantee the prisoners continuous assistance of
counsel. Thus, it ordered Virginia to develop a program for the
appointment of counsel, upon request, to indigent death row inmates
wishing to pursue habeas corpus in state court, but, in light of
Ross v. Moffitt, 417 U. S. 600, not
in federal court. The Court of Appeals affirmed. It viewed the
lower court's special "considerations"
Page 492 U. S. 2
relating to death row inmates as findings of fact which were not
clearly erroneous. It reasoned that the case was not controlled by
Pennsylvania v. Finley, 481 U. S. 551 --
which held that neither the Due Process Clause of the Fourteenth
Amendment nor the equal protection guarantee of "meaningful access"
required the State to appoint counsel for indigent prisoners
seeking postconviction relief -- since
Finley was not a
"meaningful access" case, since it did not address the rule
enunciated in
Bounds, and since it did not involve the
death penalty.
Held: The judgment is reversed, and the case is
remanded.
847 F.2d 1118, reversed and remanded.
THE CHIEF JUSTICE, joined by JUSTICE WHITE, JUSTICE O'CONNOR,
and JUSTICE SCALIA, concluded that neither the Eighth Amendment nor
the Due Process Clause requires States to appoint counsel for
indigent death row inmates seeking state postconviction relief. Pp.
492 U. S.
7-13.
(a) This Court's decisions require the conclusion that the rule
of
Pennsylvania v. Finley should apply no differently in
capital cases than in noncapital cases.
See, e.g., Smith v.
Murray, 477 U. S. 527.
State collateral proceedings are not constitutionally required as
an adjunct to the state criminal proceeding, and serve a different
and more limited purpose than either the trial or appeal. Eighth
Amendment safeguards imposed at the trial stage -- where the court
and jury hear testimony, receive evidence, and decide the question
of guilt and punishment -- are sufficient to assure the reliability
of the process by which the death penalty is imposed. Pp.
492 U. S.
7-10.
(b) There is no inconsistency whatever between the holdings in
Bounds and
Finley. The right of access at issue
in
Bounds rests on a constitutional theory considered in
Finley. Extending
Bounds would partially overrule
the subsequently decided
Finley and would' reject a
categorical rule -- the usual tack taken in right to counsel cases
-- for the adoption of a case-by-case determination based on
"factual" findings, which, under a "clearly erroneous" standard,
could result in different constitutional rules being applied in
different States. Pp.
492 U. S.
10-13.
JUSTICE KENNEDY, joined by JUSTICE O'CONNOR, concluded that
Virginia's scheme for securing representation for indigent death
row inmates does not violate the Constitution. Although Virginia's
procedures are not as far-reaching and effective as those available
in other States, no Virginia death row inmates have been unable to
obtain counsel to represent them in postconviction proceedings, and
Virginia's prison system is staffed by institutional lawyers to
assist inmates in such matters.
Bounds' meaningful access
requirement can be satisfied in various ways, and state
legislatures and prison administrators must be
Page 492 U. S. 3
given "wide discretion" to select appropriate solutions from a
range of complex options. Pp.
492 U. S.
14-15.
REHNQUIST, C.J., announced the judgment of the Court and
delivered an opinion, in which WHITE, O'CONNOR, and SCALIA, JJ.,
joined. O'CONNOR, J., filed a concurring opinion,
post, p.
492 U. S. 13.
KENNEDY, J., filed an opinion concurring in the judgment, in which
O'CONNOR, J., joined,
post, p.
492 U. S. 14.
STEVENS, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined,
post, p.
492 U. S. 15.
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and
delivered an opinion, in which JUSTICE WHITE, JUSTICE O'CONNOR, and
JUSTICE SCALIA join.
Virginia death row inmates brought a civil rights suit against
various officials of the Commonwealth of Virginia. The prisoners
claimed, based on several theories, that the Constitution required
that they be provided with counsel at the Commonwealth's expense
for the purpose of pursuing collateral proceedings related to their
convictions and sentences. The courts below ruled that appointment
of counsel upon request was necessary for the prisoners to enjoy
their
Page 492 U. S. 4
constitutional right to access to the courts in pursuit of state
habeas corpus relief. We think this holding is inconsistent with
our decision two Terms ago in
Pennsylvania v. Finley,
481 U. S. 551
(1987), and rests on a misreading of our decision in
Bounds v.
Smith, 430 U. S. 817
(1977).
Joseph M. Giarratano is a Virginia prisoner under a sentence of
death. He initiated this action under 42 U.S.C. § 1983, by
pro
se complaint in Federal District Court, against various state
officials including Edward W. Murray, who is the Director of the
Virginia Department of Corrections. Some months later, the District
Court certified a class comprising all current and future Virginia
inmates awaiting execution who do not have and cannot afford
counsel to pursue postconviction proceedings. [
Footnote 1] The inmates asserted a number of
constitutional theories for an entitlement to appointed counsel,
and the case was tried to the court.
After the evidence, post-trial briefs, and other memoranda, the
District Court expressed "serious doubts as to the viability of
many of th[e] theories."
668 F.
Supp. 511, 512 (ED Va. 1986). It was, however, "satisfied that
the United States Supreme Court's decision in
Bounds
dictates that the plaintiffs here be granted some form of relief."
Ibid. The District Court noted three special
"considerations" relating to death row inmates that it believed
required that these inmates receive greater assistance than
Bounds had outlined. It found that death row inmates had a
limited amount of time to prepare their petitions, that their cases
were unusually complex, and that the shadow of impending execution
would interfere with their ability to do legal work. These
"considerations"
Page 492 U. S. 5
led the court to believe that the "plaintiffs are incapable of
effectively using lawbooks to raise their claims." As a result, it
found that Virginia's policy of either allowing death row inmates
time in the prison law library or permitting them to have lawbooks
sent to their cells did "little to satisfy Virginia's obligation."
[
Footnote 2] 668 F. Supp. at
513. "Virginia must fulfill its duty by providing these inmates
trained legal assistance."
Ibid.
The District Court then evaluated the avenues by which inmates
convicted of capital crimes could obtain the aid of counsel in
Virginia. It found inadequate the availability of "unit attorneys"
appointed by Virginia to the various penal institutions to assist
inmates in incarcertion-related litigation.
Id. at 514.
Further, it found that,
"[e]ven if Virginia appointed additional institutional attorneys
to service death row inmates, its duty under
Bounds would
not be fulfilled"
because, acting "only as legal advisors," "[t]he scope of
assistance these attorneys provide is simply too limited."
Ibid. Along the same lines, the District Court concluded
that Virginia's provisions for appointment of counsel after a
petition is filed did not cure the problem. [
Footnote 3] This was primarily because "the
Page 492 U. S. 6
timing of the appointment is a fatal defect" as the inmate
"would not receive the attorney's assistance in the critical stages
of developing his claims."
Id. at 515.
Even together, Virginia's efforts did not afford prisoners a
meaningful right of access to the courts, in the opinion of the
District Court, because they did not guarantee them "the continuous
assistance of counsel."
Ibid. With what the District Court
feared was the imminent depletion of the pool of volunteer
attorneys willing to help Virginia death row inmates attack their
convictions and sentences, the court felt that "[t]he stakes are
simply too high for this Court not to grant, at least in part, some
relief." It therefore ordered Virginia to develop a program for the
appointment of counsel, upon request, to indigent death row inmates
wishing to pursue habeas corpus in state court.
Id. at
517. It decided, however, that the decision in
Ross v.
Moffitt, 417 U. S. 600
(1974), indicated that Virginia had no similar constitutional
obligation to appoint counsel for the pursuit of habeas corpus in
federal court. 668 F. Supp. at 516-517.
On appeal to the United States Court of Appeals for the Fourth
Circuit, a divided panel reversed the District Court's judgment
that the Commonwealth was constitutionally required to provide
personal attorneys to represent death row inmates in state
collateral proceedings. 836 F.2d 1421 (1988). But that court, en
banc, subsequently. reheard the case and affirmed the District
Court. 847 F.2d 1118 (1988). The en banc court viewed as findings
of fact the special "considerations" relating to death row inmates
which had lead the District Court to conclude that Virginia was not
in compliance with the constitutional rights of access. It accepted
these findings as not clearly erroneous, and so affirmed the the
District Court's remedial order. The en banc court did not believe
the case to be controlled by
Pennsylvania
v.
Page 492 U. S. 7
Finley, 481 U. S. 551
(1987), which held that the Constitution did not require States to
provide counsel in postconviction proceedings. "
Finley was
not a meaningful access case, nor did it address the rule
enunciated in
Bounds v. Smith." 847 F.2d at 1122. "Most
significantly," thought the Fourth Circuit, "
Finley did
not involve the death penalty."
Ibid. Four judges
dissented. We granted certiorari, 488 U.S. 923 (1988), and now
reverse.
In
Finley, we ruled that neither the Due Process Clause
of the Fourteenth Amendment nor the equal protection guarantee of
"meaningful access" required the State to appoint counsel for
indigent prisoners seeking state postconviction relief. The Sixth
and Fourteenth Amendments to the Constitution assure the right of
an indigent defendant to counsel at the trial stage of a criminal
proceeding,
Gideon v. Wainwright, 372 U.
S. 335 (1963), and an indigent defendant is similarly
entitled as a matter of right to counsel for an initial appeal from
the judgment and sentence of the trial court.
Douglas v.
California, 372 U. S. 353
(1963);
Griffin v. Illinois, 351 U. S.
12 (1956). But we held in
Ross v. Moffitt,
supra, at
417 U. S. 610,
that the right to counsel at these earlier stages of a criminal
procedure did not carry over to a discretionary appeal provided by
North Carolina law from the intermediate appellate court to the
Supreme Court of North Carolina. We contrasted the trial stage of a
criminal proceeding, where the State by presenting witnesses and
arguing to a jury attempts to strip from the defendant the
presumption of innocence and convict him of a crime, with the
appellate stage of such a proceeding, where the defendant needs an
attorney
"not as a shield to protect him against being 'haled into court'
by the State and stripped of his presumption of innocence, but
rather as a sword to upset the prior determination of guilt."
417 U.S. at
417 U. S.
610-611.
We held in
Finley that the logic of
Ross v.
Moffitt required the conclusion that there was no federal
constitutional right
Page 492 U. S. 8
to counsel for indigent prisoners seeking state postconviction
relief:
"Postconviction relief is even further removed from the criminal
trial than is discretionary direct review. It is not part of the
criminal proceeding itself, and it is in fact considered to be
civil in nature.
See Fay v. Noia, 372 U. S.
391,
372 U. S. 423-424 (1963). .
. . States have no obligation to provide this avenue of relief,
cf. United States v. MacCollom, 426 U. S.
317,
426 U. S. 323 (1976)
(plurality opinion), and when they do, the fundamental fairness
mandated by the Due Process Clause does not require that the state
supply a lawyer as well."
481 U.S. at
481 U. S.
556-557.
Respondents, like the courts below, believe that
Finley
does not dispose of respondents' constitutional claim to appointed
counsel in habeas proceedings, because
Finley did not
involve the death penalty. [
Footnote 4] They argue that, under the Eighth Amendment,
"evolving standards of decency" do not permit a death sentence to
be carried out while a prisoner is unrepresented. Brief for
Respondents 47. In the same vein, they contend that due process
requires appointed counsel in postconviction proceedings because of
the nature of the punishment and the need for accuracy.
Id. at 48-49.
We have recognized on more than one occasion that the
Constitution places special constraints on the procedures used to
convict an accused of a capital offense and sentence him to death.
See, e.g., Beck v. Alabama, 447 U.
S. 625 (1980) (trial judge must give jury the option to
convict of a lesser offense);
Lockett v. Ohio,
438 U. S. 586,
438 U. S. 604
(1978) (jury must be allowed to consider all of a capital
defendant's mitigating character evidence);
Eddings v.
Oklahoma, 455 U. S. 104
(1982) (same). The finality of the death penalty requires
Page 492 U. S. 9
"a greater degree of reliability" when it is imposed.
Lockett, supra, at
438 U. S.
604.
These holdings, however, have dealt with the trial stage of
capital offense adjudication, where the court and jury hear
testimony, receive evidence, and decide the questions of guilt and
punishment. In
Pulley v. Harris, 465 U. S.
37 (1984), we declined to hold that the Eighth Amendment
required appellate courts to perform proportionality review of
death sentences. And in
Satterwhite v. Texas, 486 U.
S. 249,
486 U. S. 256
(1988), we applied the traditional appellate standard of harmless
error review set out in
Chapman v. California,
386 U. S. 18
(1967), when reviewing a claim of constitutional error in a capital
case.
We have similarly refused to hold that the fact that a death
sentence has been imposed requires a different standard of review
on federal habeas corpus. In
Smith v. Murray, 477 U.
S. 527,
477 U. S. 538
(1986), a case involving federal habeas corpus, this Court
unequivocally rejected
"the suggestion that the principles [governing procedural fault]
of
Wainwright v. Sykes[, 433 U. S. 72 (1977),] apply
differently depending on the nature of the penalty a State imposes
for the violation of its criminal laws"
and similarly discarded the idea that "there is anything
fundamentally unfair' about enforcing procedural default rules.
. . ." Id. at 477 U. S.
538-539. And, in Barefoot v. Estelle,
463 U. S. 880,
463 U. S. 887
(1983), we observed that "direct appeal is the primary avenue for
review of a conviction or sentence, and death penalty cases are no
exception."
Finally, in
Ford v. Wainwright, 477 U.
S. 399 (1986), we held that the Eighth Amendment
prohibited the State from executing a validly convicted and
sentenced prisoner who was insane at the time of his scheduled
execution. Five Justices of this Court, however, rejected the
proposition that
"the ascertainment of a prisoner's sanity as a predicate to
lawful execution calls for no less stringent standards than those
demanded in any other aspect of a capital proceeding."
Id. at
477 U. S.
411-412. Justice Powell recognized that the
prisoner's
Page 492 U. S. 10
sanity at the time of execution was "not comparable to the
antecedent question of whether the petitioner should be executed at
all."
Id. at
477 U. S.
425.
"It follows that this Court's decisions imposing heightened
procedural requirements on capital trials and sentencing
proceedings do not apply in this context."
Ibid. (citations omitted);
id. at
477 U. S. 429
(O'CONNOR, J., joined by WHITE, J., dissenting in part and
concurring in result in part) (due process requirements minimal);
id. at
477 U. S. 434
(REHNQUIST, J., joined by Burger, C.J., dissenting) (wholly
executive procedures sufficient).
We think that these cases require the conclusion that the rule
of
Pennsylvania v. Finley should apply no differently in
capital cases than in noncapital cases. State collateral
proceedings are not constitutionally required as an adjunct to the
state criminal proceedings, and serve a different and more limited
purpose than either the trial or appeal. [
Footnote 5] The additional safeguards imposed by the
Eighth Amendment at the trial stage of a capital case are, we
think, sufficient to assure the reliability of the process by which
the death penalty is imposed. We therefore decline to read either
the Eighth Amendment or the Due Process Clause to require yet
another distinction between the rights of capital case defendants
and those in noncapital cases.
Page 492 U. S. 11
The dissent opines that the rule that it would constitutionally
mandate "would result in a net benefit to Virginia."
Post
at
492 U. S. 30. But
this "mother knows best" approach should play no part in
traditional constitutional adjudication. Even as a matter of
policy, the correctness of the dissent's view is by no means
self-evident. If, as we said in
Barefoot v. Estelle,
supra, direct appeal is the primary avenue for review of
capital cases as well as other sentences, Virginia may quite
sensibly decide to concentrate the resources it devotes to
providing attorneys for capital defendants at the trial and
appellate stages of a capital proceeding. Capable lawyering there
would mean fewer colorable claims of ineffective assistance of
counsel to be litigated on collateral attack.
The Court of Appeals, as an additional basis for its holding,
relied on what it perceived as a tension between the rule in
Finley and the implication of our decisions in
Bounds
v. Smith, 430 U. S. 817
(1977); we find no such tension. Whether the right of access at
issue in
Bounds is primarily one of due process or equal
protection, [
Footnote 6] in
either case it rests on a constitutional theory considered in
Finley. The Court held in
Bounds that a
prisoner's "right of access" to the courts required a State to
furnish access to adequate law libraries in order that the
prisoners might prepare petitions for judicial relief.
Bounds,
supra, at
430 U. S. 828.
But it would be a strange jurisprudence that permitted the
extension of.that holding to partially overrule a subsequently
decided case such as
Finley which held that prisoners
seeking judicial relief from their sentence in state proceedings
were not entitled to counsel.
It would be an even stranger jurisprudence to allow, as the
dissent would, the "right of access" involved in
Bounds v.
Smith, supra, to partially overrule
Pennsylvania v.
Finley,
Page 492 U. S. 12
based on "factual" findings of a particular District Court
regarding matters such as the perceived difficulty of capital
sentencing law and the general psychology of death row inmates.
Treating such matters as "factual findings," presumably subject
only to review under the "clearly-erroneous" standard, would permit
a different constitutional rule to apply in a different State if
the district judge hearing that claim reached different
conclusions. Our cases involving the right to counsel have never
taken this tack; they have been categorical holdings as to what the
Constitution requires with respect to a particular stage of a
criminal proceeding in general.
See Powell v. Alabama,
287 U. S. 45
(1932);
Griffin v. Illinois, 351 U. S.
12 (1956);
Gideon v. Wainwright, 372 U.
S. 335 (1963);
Douglas v. California,
372 U. S. 353
(1963);
Ross v. Moffitt, 417 U. S. 600
(1974);
Pennsylvania v. Finley, 481 U.
S. 551 (1987). Indeed, as the dissent itself points out,
post at
492 U. S. 17, and
n. 2, it was the Court's dissatisfaction with the case-by-case
approach of
Betts v. Brady, 316 U.
S. 455 (1942), that led to the adoption of the
categorical rule requiring appointed counsel for indigent felony
defendants in
Gideon.
There is no inconsistency whatever between the holding of
Bounds and the holding in
Finley; the holding of
neither case squarely decides the question presented in this case.
For the reasons previously stated in this opinion, we now hold that
Finley applies to those inmates under sentence of death as
well as to other inmates, and that holding necessarily imposes
limits on
Bounds. [
Footnote 7]
Page 492 U. S. 13
Petitioners and respondents disagree as to the practices
currently in effect in Virginia state prisons with respect to death
row prisoners. Respondents contend that these prisoners are denied
adequate and timely access to a law library during the final weeks
before the date set for their execution. If respondents are
correct, the District Court on remand may remedy this situation
without any need to enlarge the holding of
Bounds.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
In precise terms,the class was defined as:
"all persons, now and in the future, sentenced to death in
Virginia, whose sentences have been or are subsequently affirmed by
the Virginia Supreme Court and who either (1) cannot afford to
retain and do not have attorneys to represent them in connection
with their post-conviction proceedings, or (2) could not afford to
retain and did not have attorneys to represent them in connection
with a particular post-conviction proceeding."
App. 32.
[
Footnote 2]
Virginia houses its death row inmates at the Mecklenberg
Correctional Center, the Virginia State Penitentiary, and the
Powhatan Correctional Center. Each of these three centers maintain
law libraries. Inmates at Mecklenberg are allowed two library
periods per week; inmates at the other facilities may borrow
materials from the prison library for use in their cells.
[
Footnote 3]
At the time the District Court decided the case, Virginia courts
were authorized to appoint counsel to individual inmates as
follows:
"Any person, who has been a resident of this State for a
continuous period of six months, who on account of his poverty is
unable to pay fees or costs may be allowed by a court to sue or
defend a suit therein, without paying fees or costs; whereupon he
shall have, from any counsel whom the court may assign him, and
from all officers, all needful services and process, without any
fees to them therefore, except what may be included in the costs
recovered from the opposite party."
Va.Code § 14.1-183 (1950). The Virginia Code was amended in 1987
to delete the 6-month residency requirement. Va. Code § 14.1-183
(Supp. 1988). It is unclear whether, in review of capital cases,
counsel will be appointed under this statute or otherwise prior to
filing and unless the petition presents a nonfrivolous claim.
See Darnell v. Peyton, 208 Va. 675, 160 S.E.2d 749
(1968).
[
Footnote 4]
Respondents offer this theory -- that the Constitution requires
postconviction cases involving the death penalty to be treated
differently from other postconviction cases -- as a basis for
affirmance in addition to their reliance on
Bounds v.
Smith, 430 U. S. 817
(1977), discussed later.
[
Footnote 5]
The dissent offers surveys to show that Virginia is one of a
handful of States without a "system for appointing counsel for
condemned prisoners before a postconviction petition is filed."
Post at
492 U. S. 31. But
even these surveys indicate that only, 18 of the 37 States make
such appointment automatic.
Post at
492 U. S. 30.
These 18 States overlap to a significant extent with the 13 States
that have created "resource centers to assist counsel in litigating
capital cases,"
post at
492 U. S. 30-31,
which, in any event, is not the same thing as requiring automatic
appointment of counsel before the filing of a petition.
Consequently, a substantial balance of States do not accord the
right that the dissent would require Virginia to grant as a matter
of constitutional law. Virginia courts presently have the authority
to appoint counsel to represent any inmate in state habeas
proceedings, Va.Code § 14.1-183 (Supp. 1988), and the attorney
general represents that such appointments have been made, upon
request, before the filing of any petition. Brief for Petitioners
6-7.
[
Footnote 6]
The prisoner's right of access has been described as a
consequence of the right to due process of law,
see Procunier
v. Martinez, 416 U. S. 396,
416 U. S. 419
(1974), and as an aspect of equal protection,
see Pennsylvania
v. Finley, 481 U. S. 551,
481 U. S. 557
(1987).
[
Footnote 7]
Many States automatically provide counsel to death row inmates
in state habeas corpus proceedings, as a matter of state law.
See, e.g., Ariz.Rule Crim. Proc. 32.5(b); Conn.Gen.Stat. §
51-296(a) (1985); Okla.Stat., Tit. 22, § 1089 (Supp. 1988);
Ore.Rev.Stat. § 138.590(3) (1987). Under the Anti-Drug Abuse Act of
1988, attorneys will be appointed in federal habeas corpus actions
involving a challenge to a death sentence.
See Pub. L.
100-690, 102 Stat. 4181. Respondents suggest that appointment of
counsel might even benefit Virginia by speeding, or at least
clarifying, the Virginia postconviction process. The situation of
death row inmates may well be the basis for state policy to provide
them extra legal assistance or more lenient standards of
pro
se pleading.
JUSTICE O'CONNOR concurring.
I join in THE CHIEF JUSTICE'S opinion. As his opinion
demonstrates, there is nothing in the Constitution or the
precedents of this Court that requires that a State provide counsel
in postconviction proceedings. A postconviction proceeding is not
part of the criminal process itself, but is instead a civil action
designed to overturn a presumptively valid criminal judgment.
Nothing in the Constitution requires the States to provide such
proceedings,
see Pennsylvania v. Finley, 481 U.
S. 551 (1987), nor does it seem to me that the
Constitution requires the States to follow any particular federal
model in those proceedings. I also join in JUSTICE KENNEDY'S
opinion concurring in the judgment, since I do not view it as
inconsistent with the principles expressed above. As JUSTICE
KENNEDY observes, our decision in
Bounds v. Smith,
430 U. S. 817
(1977), allows the States considerable discretion in assuring that
those imprisoned in their jails obtain meaningful access to the
judicial process. Beyond the requirements of
Bounds, the
matter is one of legislative choice based on difficult policy
considerations and the allocation of scarce legal resources. Our
decision today rightly leaves these issues to resolution by
Congress and the state legislatures.
Page 492 U. S. 14
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins, concurring in
the judgment.
It cannot be denied that collateral relief proceedings are a
central part of the review process for prisoners sentenced to
death. As JUSTICE STEVENS observes, a substantial proportion of
these prisoners succeed in having their death sentences vacated in
habeas corpus proceedings.
Post at
492 U. S. 23-24,
and n. 13. The complexity of our jurisprudence in this area,
moreover, makes it unlikely that capital defendants will be able to
file successful petitions for collateral relief without the
assistance of persons learned in the law.
The requirement of meaningful access can be satisfied in various
ways, however. This was made explicit in our decision in
Bounds
v. Smith, 430 U. S. 817
(1977). The intricacies and range of options are of sufficient
complexity that state legislatures and prison administrators must
be given "wide discretion" to select appropriate solutions.
Id. at
430 U. S. 833.
Indeed, judicial imposition of a categorical remedy such as that
adopted by the court below might pretermit other responsible
solutions being considered in Congress and state legislatures.
Assessments of the difficulties presented by collateral litigation
in capital cases are now being conducted by committees of the
American Bar Association and the Judicial Conference of the United
States, and Congress has stated its intention to give the matter
serious consideration.
See 134 Cong.Rec. H11194 (Oct. 21,
1988) (providing for expedited consideration of proposals of the
Judicial Conference committee).
Unlike Congress, this Court lacks the capacity to undertake the
searching and comprehensive review called for in this area, for we
can decide only the case before us. While Virginia has not adopted
procedures for securing representation that are as far-reaching and
effective as those available in other States, no prisoner on death
row in Virginia has been unable to obtain counsel to represent him
in postconviction proceedings, and Virginia's prison system is
staffed with institutional
Page 492 U. S. 15
lawyers to assist in preparing petitions for postconviction
relief. I am not prepared to say that this scheme violates the
Constitution.
On the facts and record of this case, I concur in the judgment
of the Court.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.
Two Terms ago, this Court reaffirmed that the Fourteenth
Amendment to the Federal Constitution obligates a State "
to
assure the indigent defendant an adequate opportunity to present
his claims fairly in the context of the State's appellate
process.'" Pennsylvania v. Finley, 481 U.
S. 551, 481 U. S. 556
(1987) (quoting Ross v. Moffitt, 417 U.
S. 600, 417 U. S. 616
(1974)). The narrow question presented is whether that obligation
includes appointment of counsel for indigent death row inmates who
wish to pursue state postconviction relief. Viewing the facts in
light of our precedents, we should answer that question in the
affirmative.
I
The parties before us, like the Court of Appeals en banc and the
District Court below, have accorded controlling importance to our
decision in
Bounds v. Smith, 430 U.
S. 817 (1977). [
Footnote
2/1] In that case, inmates had alleged that North Carolina
Page 492 U. S. 16
violated the Fourteenth Amendment by failing to provide research
facilities to help them prepare habeas corpus petitions and federal
civil rights complaints. Stressing "meaningful" access to the
courts as a "touchstone,"
id. at
430 U. S. 823,
we held:
"[T]he fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained
in the law."
Id. at
430 U. S. 828.
Far from creating a discrete constitutional right,
Bounds
constitutes one part of a jurisprudence that encompasses
"right-to-counsel" as well as "access-to-courts" cases. Although
each case is shaped by its facts, all share a concern, based upon
the Fourteenth Amendment, that accused and convicted persons be
permitted to seek legal remedies without arbitrary governmental
interference.
At the fountainhead of this body of law is
Powell v.
Alabama, 287 U. S. 45,
287 U. S. 69
(1932), which recognized that "[e]ven the intelligent and educated
layman . . . requires the guiding hand of counsel at every step in
the proceedings against him." The Court reversed the convictions
and death sentences of seven black men, charged with the rape of
two white women, because the state court failed to designate
counsel until the morning of trial. Reasoning that the "notice and
hearing" guaranteed by the Due Process Clause "would be, in many
cases, of little avail if it did not comprehend the right to be
heard by counsel,"
id. at
287 U. S. 68-69,
the Court held:
"[I]n a capital case, where the defendant is unable to employ
counsel, and is incapable adequately of making his own defense
because of ignorance, feeble mindedness, illiteracy, or the like,
it is the duty of the court, whether
Page 492 U. S. 17
requested or not, to assign counsel for him as a necessary
requisite of due process of law; and that duty is not discharged by
an assignment at such a time or under such circumstances as to
preclude the giving of effective aid in the preparation and trial
of the case."
Id. at
287 U. S.
71.
Particular circumstances thus defined the degree to which the
Fourteenth Amendment protected petitioners in
Powell
against arbitrary criminal prosecution or punishment. Similarly, in
Griffin v. Illinois, 351 U. S. 12,
351 U. S. 18-19
(1956), the Court focused on "[s]tatistics show[ing] that a
substantial proportion of criminal convictions are reversed by
state appellate courts" in concluding that, once a State allows
appeals of convictions, it cannot administer its appellate process
in a discriminatory fashion. Finding no rational basis for
requiring appellants to pay for trial transcripts, "effectively
den[ying] the poor an adequate appellate review accorded to all who
have money enough to pay the costs in advance," the Court held that
the Fourteenth Amendment required States to furnish transcripts to
indigents.
Id. at
351 U. S. 18.
Accord, Burns v. Ohio,
360 U. S. 252
(1959) ($20 fee to file appeal). The principles articulated in
Griffin soon were applied to invalidate similar restraints
on state postconviction review.
Lane v. Brown,
372 U. S. 477
(1963) (transcript);
Smith v. Bennett, 365 U.
S. 708 (1961) (filing fee).
On the same day in 1963, the Court held that the Fourteenth
Amendment guaranteed indigent defendants assistance of counsel both
at trial,
Gideon v. Wainwright, 372 U.
S. 335, and on their first appeal as of right,
Douglas v. California, 372 U. S. 353.
Applying the Sixth Amendment's express right of counsel to the
States, the Court in
Gideon departed from the special
circumstances analysis in favor of a categorical approach.
[
Footnote 2/2] But because of the
absence
Page 492 U. S. 18
of a constitutional right to appeal,
see McKane v.
Durston, 153 U. S. 684
(1894), the Court decided Douglas by assessing the facts in light
of the Fourteenth Amendment. [
Footnote
2/3] The Court's reasons for invalidating California's
appellate procedure -- by which the appellate court undertook an
ex parte examination of "the barren record" to determine
whether an appeal merited appointment of counsel, 372 U.S. at
372 U. S. 356
-- echoed its earlier statements in
Griffin:
"When an indigent is forced to run this gantlet of a preliminary
showing of merit, the right to appeal does not comport with fair
procedure. . . . [T]he discrimination is not between 'possibly good
and obviously bad cases,' but between cases where the rich man can
require the court to listen to argument of counsel before deciding
on the merits, but a poor man cannot. . . . The indigent, where the
record is unclear or the errors are hidden, has only the right to a
meaningless ritual, while the rich man has a meaningful
appeal."
Douglas, 372 U.S. at
372 U. S.
357-358.
In two subsequent opinions, the Court rejected inmates' attempts
to secure legal assistance. In
Ross v. Moffitt,
417 U. S. 600
(1974), the Court held there was no right to appointment of counsel
for discretionary state appeals or certiorari petitions to this
Court. It later announced for the first
Page 492 U. S. 19
time that a State has no obligation to provide defendants with
any collateral review of their convictions, and that if it does,
"the fundamental fairness mandated by the Due Process Clause does
not require that the State supply a lawyer as well."
Pennsylvania v. Finley, 481 U.S. at
481 U. S. 557.
Although one might distinguish these opinions as having a different
legal basis than the present case, [
Footnote 2/4] it is preferable to consider them, like
Powell, Griffin, Douglas, and
Bounds, as
applications of the Fourteenth Amendment's guarantees to particular
situations. Indeed the Court reaffirmed in
Ross:
"The Fourteenth Amendment . . . does require that the state
appellate system be 'free of unreasoned distinctions,'
Rinaldi
v. Yeager, 384 U. S. 305,
384 U. S.
310 (1966), and that indigents have an adequate
opportunity to present their claims fairly within the adversary
system.
Griffin v. Illinois, supra; Draper v. Washington,
372 U. S.
487 (1963). The State cannot adopt procedures which
leave an indigent defendant 'entirely cut off from any appeal at
all' by virtue of his indigency,
Lane v. Brown, 372 U.S.
at
372 U. S. 481, or extend to
such indigents merely a 'meaningless ritual' while others in better
economic circumstances have a 'meaningful appeal.'
Douglas v.
California, supra, at
372 U. S.
358. The question is not one of absolutes, but one of
degrees."
417 U.S. at
417 U. S.
612.
II
These precedents demonstrate that the appropriate question in
this case is not whether there is an absolute "right to counsel" in
collateral proceedings, but whether due process requires that these
respondents be appointed counsel in order to pursue legal remedies.
Three critical differences between
Finley and this case
demonstrate that, even if it is
Page 492 U. S. 20
permissible to leave an ordinary prisoner to his own resources
in collateral proceedings, it is fundamentally unfair to require an
indigent death row inmate to initiate collateral review without
counsel's guiding hand. I shall address each of these differences
in turn.
First. These respondents, like petitioners in
Powell but unlike respondent in
Finley, have been
condemned to die. Legislatures conferred greater access to counsel
on capital defendants than on persons facing lesser punishment even
in colonial times. [
Footnote 2/5]
Our First Congress required assignment of up to two attorneys to a
capital defendant at the same time it initiated capital punishment;
[
Footnote 2/6] nearly a century
passed before Congress provided for appointment of counsel in other
contexts.
See Mallard v. United States District Court,
490 U. S. 296
(1989) (interpreting Act of July 20, 1892, ch. 209, § 1, 27 Stat.
252, now codified at 28 U.S.C. § 1915(d)). Similarly, Congress at
first limited the federal right of appeal to capital cases.
See
Evitts v. Lucey, 469 U. S. 387,
469 U. S. 409
(1985) (REHNQUIST, J., dissenting). Just last year, it enacted a
statute requiring provision of counsel for state and federal
prisoners seeking federal postconviction relief -- but only if they
are under sentence of death. [
Footnote
2/7]
Page 492 U. S. 21
This Court also expanded capital defendants' ability to secure
counsel and other legal assistance long before bestowing similar
privileges on persons accused of less serious crimes. [
Footnote 2/8] Both before and after
Furman v. Georgia, 408 U. S. 238
(1972), established that the Constitution requires channeling of
the death-sentencing decision, various Members of this Court have
recognized that "the penalty of death is qualitatively different
from a sentence of imprisonment, however long."
Woodson v.
North Carolina, 428 U. S. 280,
428 U. S. 305
(1976) (plurality opinion). [
Footnote
2/9]
Page 492 U. S. 22
The unique nature of the death penalty not only necessitates
additional protections during pretrial, guilt, and sentencing
phases, [
Footnote 2/10] but also
enhances the importance of the appellate process. Generally there
is no constitutional right to
Page 492 U. S. 23
appeal a conviction.
See, e.g., McKane v. Durston,
153 U. S. 684
(1894). "[M]eaningful appellate review" in capital cases, however,
"serves as a check against the random or arbitrary imposition of
the death penalty."
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 195,
428 U. S. 206
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.). It is
therefore an integral component of a State's
"constitutional responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious infliction of the
death penalty."
Godfrey v. Georgia, 446 U. S. 420,
446 U. S. 428
(1980). [
Footnote 2/11]
Ideally,
"direct appeal is the primary avenue for review of a conviction
or sentence, and death penalty cases are no exception. When the
process of direct review . . . comes to an end, a presumption of
finality and legality attaches to the conviction and sentence."
Barefoot v. Estelle, 463 U. S. 880,
463 U. S. 887
(1983). There is, however, significant evidence that, in capital
cases, what is ordinarily considered direct review does not
sufficiently safeguard against miscarriages of justice to warrant
this presumption of finality. [
Footnote 2/12] Federal habeas
Page 492 U. S. 24
courts granted relief in only 0.25% to 7% of noncapital cases in
recent years; in striking contrast, the success rate in capital
cases ranged from 60% to 70%. [
Footnote 2/13] Such a high incidence of uncorrected
error demonstrates that the meaningful appellate review necessary
in a capital case extends beyond the direct appellate process.
Second. In contrast to the collateral process discussed
in
Finley, Virginia law contemplates that some claims
ordinarily heard on direct review will be relegated to
postconviction proceedings. Claims that trial or appellate counsel
provided constitutionally ineffective assistance, for instance,
usually cannot be raised until this stage.
See Frye v.
Commonwealth, 231 Va. 370,
345 S.E.2d
267 (1986). Furthermore, some irregularities, such as
prosecutorial misconduct, may not surface until after the direct
review is complete.
E.g., Amadeo v. Zant, 486 U.
S. 214 (1988) (prosecutor deliberately underrepresented
black people and women in jury pools);
Brady v. Maryland,
373 U. S. 83
(1963). Occasionally, new evidence even may suggest that the
defendant is innocent.
E.g., Ex parte Adams, No. 70,787
(Tex.Cr.App., Mar. 1, 1989) (available on Lexis);
McDowell v.
Dixon, 858
Page 492 U. S. 25
F.2d 945 (CA4 1988),
cert. denied, 489 U.S. 1033
(1989). Given the irreversibility of capital punishment, such
information deserves searching, adversarial scrutiny even if it is
discovered after the close of direct review.
The postconviction procedure in Virginia may present the first
opportunity for an attorney detached from past proceedings to
examine the defense and to raise claims that were barred on direct
review by prior counsel's ineffective assistance. A fresh look may
reveal, for example, that a prior conviction used to enhance the
defendant's sentence was invalid,
e.g., Johnson v.
Mississippi, 486 U. S. 578
(1988); or that the defendant's mental illness, lack of a prior
record, or abusive childhood should have been introduced as
evidence in mitigation at his sentencing hearing,
e.g., Curry
v. Zant, 258 Ga. 527,
371 S.E.2d 647
(1988). Defense counsel's failure to object to or assert such
claims precludes direct appellate review of them. [
Footnote 2/14] The postconviction proceeding gives
inmates another chance to rectify defaults. [
Footnote 2/15] In Virginia,
Page 492 U. S. 26
therefore, postconviction proceedings are key to meaningful
appellate review of capital cases.
State postconviction proceedings also are the cornerstone for
all subsequent attempts to obtain collateral relief. Once a
Virginia court determines that a claim is procedurally barred, a
federal court may not review it unless the defendant can make one
of two difficult showings: that there was both cause for the
default and resultant prejudice, or that failure to review will
cause a fundamental miscarriage of justice.
Murray v.
Carrier, 477 U. S. 478,
477 U. S. 485,
477 U. S. 495
(1986);
Wainwright v. Sykes, 433 U. S.
72,
433 U. S. 87
(1977). If an asserted claim is tested in an evidentiary hearing,
the state postconviction court's factual findings may control the
scope of a federal court's review of a subsequent petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. [
Footnote 2/16]
Nor may a defendant circumvent the state postconviction process
by filing a federal habeas petition. In
Rose v. Lundy,
455 U. S. 509
(1982), this Court held that, in order to comply with the
exhaustion provision of 28 U.S.C. § 2254(c), federal courts should
dismiss petitions containing claims that have not been "fairly
presented to the state courts,"
Picard v. Connor,
404 U. S. 270,
404 U. S. 275
(1971), for both direct and postconviction review,
Castille v.
Peoples, 489 U. S. 346
(1989). Given the stringency with which this Court adheres to
procedural default rules, [
Footnote
2/17] it is of great importance to the prisoner
Page 492 U. S. 27
that all his substantial claims be presented fully and
professionally in his first state collateral proceeding. [
Footnote 2/18]
Third. As the District Court's findings reflect, the
plight of the death row inmate constrains his ability to wage
collateral attacks far more than does the lot of the ordinary
inmate considered in
Finley. [
Footnote 2/19] The District Court found that the death
row inmate has an extremely limited period to prepare and present
his postconviction petition and any necessary applications for
stays of execution.
668 F.
Supp. 511, 513 (ED Va. 1986). Unlike the ordinary inmate, who
presumably has ample time to use and reuse the prison library and
to seek guidance from other prisoners experienced in preparing
pro se petitions,
cf. Johnson v. Avery,
393 U. S. 483
(1969), a grim deadline imposes a finite limit on the condemned
person's capacity for useful research. [
Footnote 2/20]
Capital litigation, the District Court observed, is extremely
complex. 668 F. Supp. at 513. Without regard to the special
characteristics of Virginia's statutory procedures, [
Footnote 2/21]
Page 492 U. S. 28
this Court's death penalty jurisprudence unquestionably is
difficult even for a trained lawyer to master. [
Footnote 2/22] A judgment that it is not unfair to
require an ordinary inmate to rely on his own resources to prepare
a petition for postconviction relief,
see Finley, 481 U.S.
at
481 U. S. 557,
does not justify the same conclusion for the death row inmate, who
must acquire an understanding of this specialized area of the law
and prepare an application for stay of execution as well as a
petition for collateral relief. [
Footnote 2/23] This is especially true, the District
Court concluded, because the
"evidence gives rise to a fair inference that an inmate
preparing himself and his family for impending death is incapable
of performing the mental functions necessary to adequately pursue
his claims. [
Footnote 2/24]"
668 F. Supp. at 513.
Page 492 U. S. 29
These three critical factors demonstrate that there is a
profound difference between capital postconviction litigation and
ordinary postconviction litigation in Virginia. The District
Court's findings unequivocally support the conclusion that, to
obtain an adequate opportunity to present their postconviction
claims fairly, death row inmates need greater assistance of counsel
than Virginia affords them.
Cf. id. at 514-515. Meaningful
access, and meaningful judicial review, would be effected in this
case only if counsel were appointed, on request, in time to enable
examination of the case record, factual investigation, and
preparation of a petition containing all meritorious claims, which
the same attorney then could litigate to its conclusion.
III
Although in some circumstances governmental interests may
justify infringements on Fourteenth Amendment rights,
cf.
Mathews v. Eldridge, 424 U. S. 319,
424 U. S.
334-335 (1976), Virginia has failed to assert any
interest that outweighs respondents' right to legal assistance. The
State already appoints counsel to death row inmates who succeed in
filing postconviction petitions asserting at least one nonfrivolous
claim; therefore, the additional cost of providing its 32 death row
inmates competent counsel to prepare such petitions should be
minimal.
See 668 F. Supp. at 512, 515. Furthermore,
multiple filings delay the conclusion of capital litigation and
exacerbate the already serious burden these cases impose
Page 492 U. S. 30
on the State's judicial system and the legal department. It
seems obvious that professional preparation of the first
postconviction petition, by reducing successive petitions, would
result in a net benefit to Virginia. [
Footnote 2/25]
Of the 37 States authorizing capital punishment, at least 18
automatically provide their indigent death row inmates counsel to
help them initiate state collateral proceedings. [
Footnote 2/26] Thirteen of the 37 States have
created governmentally funded resource
Page 492 U. S. 31
centers to assist counsel in litigating capital cases. [
Footnote 2/27] Virginia is among as few
as five States that fall into neither group, and have no system for
appointing counsel for condemned prisoners before a postconviction
petition is filed. [
Footnote
2/28] In
Griffin, the Court proscribed Illinois'
discriminatory barrier to appellate review in part because many
other States already had rejected such a barrier. 351 U.S. at
351 U. S. 19;
cf. Gideon, 372 U.S. at
372 U. S. 345
(noting that 22 States supported right to trial counsel).
Similarly, the trend in most States to expand legal assistance for
their death row inmates further
Page 492 U. S. 32
dilutes Virginia's weak justifications for refusing to do so,
and "lends convincing support to the conclusion" of the courts
below that these respondents have a fundamental right to the relief
they seek.
See Powell, 287 U.S. at
287 U. S.
73.
IV
The basic question in this case is whether Virginia's procedure
for collateral review of capital convictions and sentences assures
its indigent death row inmates an adequate opportunity to present
their claims fairly. The District Court and Court of Appeals en
banc found that it did not, and neither the State nor this Court's
majority provides any reasoned basis for disagreeing with their
conclusion. Simple fairness requires that this judgment be
affirmed.
I respectfully dissent.
[
Footnote 2/1]
Compare Brief for Petitioners 23 ("The notion that the
access right is to be measured against the assistance that might be
provided an inmate by a personal lawyer has no support in
Bounds. Indeed, the idea is entirely inconsistent with the
limited nature of the right")
with Brief for Respondents
25 ("The district court's findings, conclusion, and remedy all
comprise a conventional application of
Bounds in an
extraordinary context").
Although the Court of Appeals en banc and District Court placed
singular reliance on
Bounds, both indicated that they
would have reached the same result on the other legal theories as
well. 847 F.2d 1118, 1122, n. 8 (CA4 1988) (en banc). ("Because of
the peculiar nature of the death penalty, we find it difficult to
envision any situation in which appointed counsel would not be
required in state postconviction proceedings when a prisoner under
the sentence of death could not afford an attorney");
668 F.
Supp. 511, 516, n. 4 (ED Va. 1986) ("[C]hanging the theory
under which relief is sought would not alter the analysis").
[
Footnote 2/2]
See Gideon, 372 U.S. at
372 U. S.
342-344. Justice Harlan made explicit
Gideon's
abandonment of the special circumstances rule in the context of the
right to counsel in serious criminal prosecutions.
Id. at
372 U. S.
350-351 (concurring opinion).
But see id. at
372 U. S. 348,
n. 2 (Clark, J., concurring in result) (linking
Gideon to
Griffin v. Illinois, 351 U. S. 12
(1956), and
Ferguson v. Georgia, 365 U.
S. 570 (1961), also a Fourteenth Amendment case).
[
Footnote 2/3]
The Court consistently has adhered to Justice Sutherland's
observation in
Powell v. Alabama, 287 U. S.
45,
287 U. S. 53, 71
(1932), that when assistance of counsel is required, that
assistance must be "effective," rather than
pro forma.
See Evitts v. Lucey, 469 U. S. 387
(1985);
Strickland v. Washington, 466 U.
S. 668 (1984);
Wainwright v. Torna,
455 U. S. 586
(1982) (per curiam).
Cf. Penson v. Ohio, 488 U. S.
75,
488 U. S. 85
(1988) ("The need for forceful advocacy does not come to an abrupt
halt as the legal proceeding moves from the trial to appellate
stage. Both stages of the prosecution, although perhaps involving
unique legal skills, require careful advocacy to ensure that rights
are not forgone and that substantial legal and factual arguments
are not inadvertently passed over").
[
Footnote 2/4]
The en banc majority below, for instance, distinguished
Pennsylvania v. Finley, 481 U. S. 551
(1987), in part on the ground that it "was not a meaningful access
case, nor did it address the rule enunciated in
Bounds v.
Smith." 847 F.2d at 1122.
[
Footnote 2/5]
The Colonies of Pennsylvania, South Carolina, and Virginia made
counsel more available to capital defendants than to persons
accused of other offenses.
See Powell, 287 U.S. at
287 U. S. 61-63,
287 U. S.
65.
[
Footnote 2/6]
Act of Apr. 30, 1790, ch. 9, §§ 1, 3, 8-10, 14, 1 Stat. 112-115
(authorizing death sentence for willful murder, treason, and other
crimes);
id. § 29, 1 Stat. 118, as amended, 18 U.S.C. §
3005 (requiring appointment of counsel for capital defendants).
[
Footnote 2/7]
The Anti-Drug Abuse Act of 1988, § 7001(b), Pub. L. 100-690, 102
Stat. 4393-4394, to be codified at 21 U.S.C. §§ 848(q)(4)(B),
(q)(8), provides in pertinent part:
"(B) In any post-conviction proceeding under section 2254 or
2255 of title 28, United States Code, seeking to vacate or set
aside a death sentence, any defendant who is or becomes financially
unable to obtain adequate representation or investigative, expert,
or other reasonably necessary services shall be entitled to the
appointment of one or more attorneys and the furnishing of such
other services in accordance with paragrap[h] . . . (8). . . ."
"
* * * *"
"(8) Unless replaced by similarly qualified counsel upon the
attorney's own motion or upon motion of the defendant, each
attorney so appointed shall represent the defendant throughout
every subsequent stage of available judicial proceedings, including
pretrial proceedings, trial, sentencing, motions for new trial,
appeals, applications, for writ of certiorari to the Supreme Court
of the United States, and all available post-conviction process,
together with applications for stays of execution and other
appropriate motions and procedures, and shall also represent the
defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the
defendant."
[
Footnote 2/8]
Powell v. Alabama, 287 U. S. 45
(1932), for instance, established a right to appointment of counsel
for capital defendants three decades before that right was extended
to felony defendants facing imprisonment.
Gideon v.
Wainwright, 372 U. S. 335
(1963),
overruling Betts v. Brady, 316 U.
S. 455 (1942).
See Hamilton v. Alabama,
368 U. S. 52 (1961)
(reversing State's denial of postconviction relief for petitioner
who was not represented by counsel at arraignment on capital
charge). In
Bute v. Illinois, 333 U.
S. 640,
333 U. S. 674
(1948), the Court held that a state court was not required to query
a defendant in a noncapital case regarding his desire for counsel.
"On the other hand," Justice Burton pointed out in the majority
opinion,
"this Court repeatedly has held that failure to appoint counsel
to assist a defendant or to give a fair opportunity to the
defendant's counsel to assist him in his defense where charged with
a capital crime is a violation of due process of law under the
Fourteenth Amendment."
Id. at
333 U. S. 676
(citing cases).
[
Footnote 2/9]
Among those making this point before
Furman were
Justice Frankfurter in
Andres v. United States,
333 U. S. 740,
333 U. S. 753
(1948) (concurring opinion) ("The statute reflects the movement,
active during the nineteenth century, against the death sentence.
The movement was impelled both by ethical and humanitarian
arguments against capital punishment, as well as by the practical
consideration that jurors were reluctant to bring in verdicts which
inevitably called for its infliction"), and again in
Leland v.
Oregon, 343 U. S. 790,
343 U. S. 803
(1952) (dissenting opinion) ("Even though a person be the immediate
occasion of another's death, he is not a deodand to be forfeited
like a thing in the medieval law"), and Justice Reed in
Andres,
supra, at
333 U. S. 752
(opinion of the Court) ("In death cases, doubts such as those
presented here should be resolved in favor of the accused").
In 1983, seven years after
Furman had been decided,
JUSTICE O'CONNOR observed in a majority opinion that the
"Court, as well as the separate opinions of a majority of the
individual Justices, has recognized that the qualitative difference
of death from all other punishments requires a correspondingly
greater degree of scrutiny of the capital sentencing
determination."
California v. Ramos, 463 U. S. 992,
463 U. S.
998-999 (1983);
see id. at
463 U. S. 999,
n. 9 (citing cases).
See also, e.g., Ford v. Wainwright,
477 U. S. 399,
477 U. S. 411
(1986) (MARSHALL, J., plurality opinion) ("In capital proceedings
generally, this Court has demanded that factfinding procedures
aspire to a heightened standard of reliability. . . . This especial
concern is a natural consequence of the knowledge that execution is
the most irremediable and unfathomable of penalties; that death is
different");
Ake v. Oklahoma, 470 U. S.
68,
470 U. S. 87
(1985) (Burger, C.J., concurring in judgment) ("In capital cases,
the finality of the sentence imposed warrants protections that may
or may not be required in other cases");
Gardner v.
Florida, 430 U. S. 349,
430 U. S.
357-358 (1977) (STEVENS, J., plurality opinion) ("From
the point of view of the defendant, it is different in both its
severity and its finality. From the point of view of society, the
action of the sovereign in taking the life of one of its citizens
also differs dramatically from any other legitimate state action.
It is of vital importance to the defendant and to the community
that any decision to impose the death sentence be, and appear to
be, based on reason, rather than caprice or emotion").
[
Footnote 2/10]
E.g., Satterwhite v. Texas, 486 U.
S. 249 (1988);
Booth v. Maryland, 482 U.
S. 496 (1987);
Caldwell v. Mississippi,
472 U. S. 320
(1985);
Spaziano v. Florida, 468 U.
S. 447,
468 U. S. 456
(1984);
Beck v. Alabama, 447 U. S. 625
(1980);
Lockett v. Ohio, 438 U. S. 586
(1978) (plurality opinion).
Accord, ante, at
492 U. S. 8-9.
[
Footnote 2/11]
Accord, Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 303
(1976) (plurality opinion);
Proffitt v. Florida,
428 U. S. 242,
428 U. S. 251,
428 U. S. 253,
428 U. S.
258-259 (1976) (opinion of Stewart, Powell, and STEVENS,
JJ.);
Jurek v. Texas, 428 U. S. 262,
428 U. S. 276
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.);
Gregg v.
Georgia, 428 U. S. 153,
428 U. S. 188
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.).
Cf.
Ramos, 463 U.S. at
463 U. S. 999;
Zant v. Stephens, 462 U. S. 862,
462 U. S. 876
(1983);
Griffin, 351 U.S. at
351 U. S. 21
(Frankfurter, J., concurring in judgment) ("Since capital offenses
are
sui generis, a State may take account of the
irrevocability of death by allowing appeals in capital cases and
not in others").
[
Footnote 2/12]
Nor can we overlook our experience that capital litigation
proceeds apace after affirmance of a conviction. With the vigorous
opposition of state legal departments, capital defendants seek not
only review of state and federal judicial decisions, but also
relief from state governors and parole boards.
See Powell,
Capital Punishment, 102 Harv.L.Rev. 1035, 1038-1041 (1989). Thus,
the conviction and sentence in a capital case will not be "final,"
or undisturbed, until the sentence either is executed or set aside.
Cf. Barefoot v. Estelle, 463 U. S. 880,
463 U. S. 888
(1983). With the cases of over half the Nation's more than 2,100
inmates yet to move into collateral proceedings, Wilson &
Spangenberg, State Post-Conviction Representation of Defendants
Sentenced to Death, 72 Judicature 331, 332 (1989), the need for an
orderly sequence of review is pellucid. As THE CHIEF JUSTICE has
remarked,
"'We judges have no right to insist that matters such as these
proceed at a leisurely pace, or even at an ordinary pace, but I
think we do have a claim to have explored the possibility of
imposing some reasonable regulations in a situation which is
disjointed and chaotic.'"
Remarks before the National Conference of Chief Justices (Jan.
27, 1988), quoted in Powell,
supra, at 1040.
[
Footnote 2/13]
Mello, Facing Death Alone: The Post-Conviction Attorney Crisis
on Death Row, 37 Am.U.L.Rev. 513, 520-521 (1988). The former Chief
Judge of the Eleventh Circuit, which has the greatest volume of
capital litigation, recently estimated that, in his Circuit,
capital defendants' success rate in collateral proceedings may be
as high as one-third to one-half of all such cases. Godbold, Pro
Bono Representation of Death Sentenced Inmates, 42 Record of
N.Y.C.B.A. 859, 873 (1987).
Cf. Barefoot, 463 U.S. at
463 U. S. 915
(MARSHALL, J., dissenting).
[
Footnote 2/14]
The Virginia Supreme Court requires contemporaneous objection
before it will consider any asserted trial error on direct review.
Va.Sup.Ct.Rule 5:21. Likewise, it does not review the entire case
record, but only questions clearly assigned as errors on appeal.
See ibid.; Va.Code § 17.110.1 (1988).
See also
Quintana v. Commonwealth, 224 Va. 127,
295 S.E.2d
643 (1982),
cert. denied, 460 U.S. 1029 (1983).
This Court abides by States' applications of rules precluding
direct review of procedurally defaulted claims,
see
Caldwell, 472 U.S. at
427 U. S. 327, sometimes in confidence that an obvious
error will be corrected on collateral review.
E.g., Watkins v.
Virginia, 475 U. S. 1099,
1100 (1986) (opinion of STEVENS, J., respecting the denial of
petition for certiorari in 229 Va. 469,
331 S.E.2d
422 (1985)).
[
Footnote 2/15]
The Virginia Supreme Court will consider previously defaulted
claims on postconviction review if the petitioner shows that
counsel was ineffective in failing to assert a claim or object to
an error.
See Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d
680 (1974),
cert. denied, 419 U.S. 1108 (1975). Failure to
do so may forever bar review, for Virginia does not allow a claim
that could have been raised in the first postconviction petition to
be asserted in a successive petition. Va.Code § 8.01-654(B)(2)
(1984).
See 847 F.2d at 1120, n. 4;
Whitley v.
Bair, 802 F.2d 1487 (CA4 1986),
cert. denied, 480
U.S. 951 (1987).
[
Footnote 2/16]
Indeed, if the petitioner is represented by counsel at the
hearing, the court's factual findings attain a presumption of
correctness that may bar further factual review by the federal
court. 28 U.S.C. § 2254(d)(5).
See Sumner v. Mata,
449 U. S. 539
(1981).
[
Footnote 2/17]
See, e.g., Dugger v. Adams, 489 U.
S. 401 (1989) (declining to review claim that jury was
instructed inaccurately regarding its role in the capital
sentencing process);
Teague v. Lane, 489 U.
S. 288 (1989) (holding procedurally barred claim,
asserted by petitioner serving life term for murder, that jury was
selected in a biased manner in violation of
Swain v.
Alabama, 380 U. S. 202
(1965)).
See also 492 U.S.
1fn2/14|>n. 14,
supra.
[
Footnote 2/18]
The availability of appointed counsel on federal habeas,
see 492 U.S.
1fn2/7|>n. 7,
supra, thus presents the specter of a
petitioner filing for federal habeas corpus and attaining counsel,
only to have the petition dismissed as unexhausted and remanded to
state court. Such a haphazard procedure scarcely would serve any
interest in finality. It further would raise questions regarding
the obligations not only of the appointed counsel to effect
exhaustion at the state level, but also of the Federal Treasury to
pay for those efforts.
Cf. Ex parte Hull, 312 U.
S. 546,
312 U. S. 549
(1941) ("the state and its officers may not abridge or impair
petitioner's right to apply to a federal court for a writ of habeas
corpus").
[
Footnote 2/19]
I am at a loss as to why the plurality today prefers to label
the District Court findings of fact, based upon trial testimony and
post-trial submissions, "considerations."
See ante at
492 U. S. 4-5,
6.
[
Footnote 2/20]
An execution may be scheduled for any time 30 days after the
date of sentencing. Va.Code § 53.1-232 (1988);
see 668 F.
Supp. at 513. A 1988 study commissioned by the American Bar
Association found that attorneys spent an average of 992 hours and
$3,686 on each capital postconviction proceeding in Virginia. Brief
for American Bar Association as
Amicus Curiae 34
(hereinafter ABA Brief).
[
Footnote 2/21]
The District Court commented:
"In Virginia, the capital trial is bifurcated, entailing
separate proceedings to determine guilt and to set the appropriate
punishment. Aside from analyzing the voluminous transcript of the
guilt determination phase which not infrequently lasts several
days, a great deal of time must be devoted to analyzing the issues
of mitigation and aggravation characteristic of the sentencing
phase of a capital case."
668 F. Supp. at 513.
[
Footnote 2/22]
In apparent recognition of this fact, Congress has required
that, when a court appoints counsel in capital postconviction
proceedings, at least one attorney must have been a member of the
bar for at least five years and have at least three years' felony
litigation experience. § 7001(b) of the Anti-Drug Abuse Act of
1988, Pub. L. 100-690, 102 Stat. 4394, to be codified at 21 U.S.C.
§§ 828(q)(5), (q)(6).
[
Footnote 2/23]
Compounding matters is the typically low educational attainment
of prisoners. In 1982, more than half of Florida's general inmate
population was found to be functionally illiterate, while in 1979,
the State's death row inmates possessed a ninth-grade mean
educational level. ABA Brief 26-27. Virginia's death row inmates
apparently have similar educational backgrounds.
See Brief
for American Civil Liberties Union
et al. as
Amici
Curiae 20-21, n. 7.
See also Brief for Maryland State
Bar Association
et al. as
Amici Curiae 16-17
(State Bar Brief) (citing similar statistics for other States'
inmate populations).
[
Footnote 2/24]
For example, one lawyer testified:
"I have had lots of clients in those last 60-day time periods,
and what they are forced to do is to prepare themselves mentally
and spiritually and emotionally to deal with their family and their
children, all of whom see them as about to die. And that is a
full-time job."
"And very few of them, I think, even have the emotional
resources to talk with you meaningfully at that point about their
case. Much less to take it over."
App. 66.
Cf. Medley, 134 U. S. 160,
134 U. S. 172
(1890) ("[W]hen a prisoner sentenced by a court to death is
confined in the penitentiary awaiting the execution of the
sentence, one of the most horrible feelings to which he can be
subjected during that time is the uncertainty during the whole of
it, which may exist for the period of four weeks, as to the precise
time when his execution shall take place").
[
Footnote 2/25]
A representative of the Virginia attorney general's office
testified regarding the office's policy not to oppose a death row
inmate's motion for appointment of postconviction counsel as
follows:
"Well, basically we want to see the inmate have an attorney at
State Habeas for reasons of economy and efficiency."
"When you have a death case, we recognize that it is going to be
prolonged litigation, and we want to see all matters that the
inmate or the petitioner wants to raise be raised at one
proceeding, and we can deal more efficiently with an attorney. And
we prefer that, from an economy standpoint, we don't have to have
more than one proceeding."
App. 272.
Cf. Powell, 102 Harv.L.Rev. at 1040
(attributing delay in carrying out capital punishment in part to
lack of counsel on collateral review).
[
Footnote 2/26]
Ariz. Rule of Crim. Proc. 32.5(b); Cal.Govt.Code Ann. § 15421(c)
(West 1980), Cal.Penal Code Ann. § 1240 (West 1982);
Conn.Super.Ct.Rules, Criminal Cases § 959, Conn.Gen.Stat. §
51-296(a) (1989); Fla.Stat. § 27.702 (1987); Idaho Code § 19-4904
(1987); Ind.Rule Proc. for Post-Conviction Remedies 1, § 9;
Md.Ann.Code, Art. 27, § 645A(f) (Supp. 1988); Mo.Rules Crim.Proc.
24.035(e), 29.15(e); N.J.Rules Governing Criminal Practice 3:22-6,
3:27-1, N.J.Stat.Ann. § 2A:158A-5 (West Supp. 1989-1990);
N.C.Gen.Stat. §§ 15A-1421 (1988), 7A-451(a)(2) (Supp. 1988),
7A-486.3 (1986); Okla.Stat., Tit. 22, § 1089 (Supp. 1988);
Ore.Rev.Stat. § 138.590(3) (1987); Pa.Rule Crim.Proc. 1503;
S.D.Codified Laws § 21-27-4 (1987); Tenn.Sup.Ct.Rule 13, § 1; Utah
Rule Civ.Proc. 65B(i)(5); Vt.Stat.Ann., Tit. 13, §§ 5231-5233, 7131
(1974), as interpreted in
In re Morse, 138 Vt. 327,
415 A.2d 232
(1980); Wash.Super.Ct.Crim.Rule 3.1(b)(2).
In addition to these 18 States, 3 -- Montana, Nevada, and
Wyoming -- have no definitive case or statutory law on this point,
but are listed in a 1988 study commissioned by the American Bar
Association as having a practice of mandatory appointment of
counsel on request. Wilson & Spangenberg, 72 Judicature, at 334
(Table 1).
[
Footnote 2/27]
They are Alabama, Arizona, California, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South
Carolina, Tennessee, and Texas. State Bar Brief 34.
See
Mello, 37 Amer.U.L.Rev. at 593-606 (discussing development of
Florida's resource center);
cf. Godbold, 42 Record of
N.Y.C.B.A., at 868-871 (state and federal efforts to provide legal
assistance). As a result of several studies it has commissioned
concerning the significance of providing counsel in capital
postconviction proceedings, the American Bar Association
"has recognized that the only feasible way to provide death row
inmates with meaningful access to the courts is the implementation
in each state which imposes capital punishment of a governmentally
funded system under which qualified, compensated attorneys
represent death row inmates in state post-conviction
proceedings."
ABA Brief 4-5.
[
Footnote 2/28]
Of 27 States that responded to a 1988 survey, only Virginia,
Nebraska, Pennsylvania, and Nevada were reported to have no system
"to monitor and assure that counsel will be provided prior to the
filing of a post-conviction petition." Wilson & Spangenberg,
supra, at 335. Of those, only Virginia and Nevada have
executed prisoners since this Court decided
Furman v.
Georgia, 408 U. S. 238
(1972). NAACP Legal Defense and Education Fund, Inc., Death Row,
U.S.A. 3 (March 1, 1989) (Death Row). Pennsylvania, and perhaps
Nevada, appoint counsel automatically upon request.
See
492 U.S.
1fn2/26|>n. 26,
supra. Of the 10 States that have
death penalty statutes but were not part of the survey, only
Arkansas, Colorado, and New Hampshire have neither rules for
automatic appointment of counsel nor resource centers. None of
these States.has conducted a post-
Furman execution; New
Hampshire, in fact, has no prisoner under sentence of death, and
Colorado has none whose case has reached the state postconviction
stage. Death Row,
supra, at l; Wilson & Spangenberg,
supra, at 334.