Katz rejects the idea that inmate appeals should or could be brought well before an execution date is set. “Are we supposed to be filing shotgun litigation at random times and jamming up the federal courts?” he asks. “You’re going to have hundreds of inmates filing at all times. I don’t see why that would be better.”
Everyone agrees that a major reason for late-stage appeals is that, in many states, defendants facing a death sentence do not get the best court-appointed counsel at trial. As Brandon Garrett points out in his book End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, many states over the past 30 years have moved to a statewide system of full-time state-paid capital defenders and away from trial counsel appointed for a small fee by the trial judge. For all its Atticus Finch romance, that system too often produced abysmal defense at trial. “By 2013,” he writes, “almost all death penalty states provided state-level capital representation at trial … and only a few holdouts, most notably Alabama, Florida, and Nevada,” do not. Death sentences have dropped dramatically in the states that have these systems. “States with shoddy lawyers for the defense,” Garrett writes, “represent what remains of the American death penalty.” That means fewer new death sentences, which, in time, will mean fewer late nights for the justices.
But that reduction will take time. More than 2,700 prisoners remain on death row across the nation. And many states, particularly in the “death belt” that stretches from Florida to Texas, are determined to keep the gurneys running.
Supporters of the death penalty regard the long delays as miscarriages of justice. “We focus a lot on defendants, and defendants have rights that should be safeguarded throughout the process,” Cassell, the former judge turned victim-rights scholar, told me. “But there is another side and that is victims, who have to put their lives on hold each time there’s a motion or a hearing.” He added, “If you look at the national statistics, you can see increasing periods of delay that cannot be explained by lack of counsel.”
There’s no doubt that death sentences usually lead to long delays. Are death-penalty lawyers really the reason for them? From my own reporting about capital punishment, the problem seems more diffuse. At very best, the recent spleen emanating from the Court’s right wing is bad manners. (The Court’s death caucus is, after all, winning most of the votes that seem to embitter them so.) But the threat goes beyond politesse: The Court’s angry pronouncements could intimidate private lawyers who would usually consider helping with death appeals, and send a message to state and federal judges that death appeals are to be given short shrift.
Capital-defense lawyers do try to halt what Justice Harry Blackmun once called “the machinery of death.” To me, that seems no different from what other lawyers do, in great cases and small. The Exxon Valdez oil tanker spilled more than 10 million gallons of crude oil into Alaska’s Prince William Sound in 1989; the company, represented by the best lawyers in America, delayed final judgment in a tort suit for 20 years. Prison-rights groups sued the state of California in 1990 over flaws in its prison mental-health system; five years later, a federal court concluded that system violated the Eighth Amendment. The state missed court-ordered deadlines to improve it for the next 15 years, before the Supreme Court called it to heel. When private and public money inspires such legal solicitude, are we surprised that capital-defense lawyers fight to preserve their clients’ lives?
“I say that you want to do everything in your client’s interest,” says Chris Adams, an experienced capital-defense lawyer in Charleston, South Carolina. “If I’m his lawyer, I’m going to litigate every legitimate issue that we have.” Aaron Katz, the lawyer who represented Christopher Price in the Alabama method-of-execution case, puts it more simply: “I genuinely don’t want our client to suffer in his last few minutes. That takes priority.”